IN THE CASE OF:	

		BOARD DATE:	  9 March 2010

		DOCKET NUMBER:  AR20090015524 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that the type of separation that he received and the narrative reason for his separation be changed from discharge for misconduct to retirement by reason of physical disability.

2.  The applicant states that due to an in-service injury to his left wrist, he was discharged without a medical board evaluation.  He states that he filed a claim with the Department of Veterans Affairs (VA) and he was granted temporary total compensation effective 2 September 1999, which was 1 day after his discharge.  He states that his rating was reduced to 40 percent effective 2 September 2000 and then it was increased to 50 percent effective 16 August 2001, which his current rating.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a copy of his VA Rating Decision.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel states, in effect, that the issues raised by the applicant amply advance his contentions and substantially reflect the probative facts needed for an equitable review of his case.  Counsel rests on the evidence of record.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  After completing 4 years, 7 months, and 29 days of total prior active honorable service, the applicant enlisted in the Army on 18 September 1997, for 4 years, in the pay grade of E-3.  He was awarded a signal support systems specialist military occupational specialty.

3.  On 6 January 1999, the applicant was counseled for assaulting a family member.  The summary of counseling shows that on or about 23 September 1998 the applicant was arrested for assaulting his spouse.  He was told by his section chief that the military would not tolerate his behavior no matter how slight and that if he found himself in that situation, to leave the area immediately.  The section chief stated that he was aware that the applicant's spouse was having difficulty getting adjusted to the way the military did business and he recommended that the applicant and his spouse seek marital counseling as soon as possible to help settle the differences.

4.  The applicant was counseled a second time of 6 January 1999 for bouncing a check and as a result being confined by civil authorities.  The summary of counseling shows that on 23 September 1998 the applicant was arrested for assaulting a family member and he requested the services of ABC Bail Bonds Company so he could get out of jail.  The applicant wrote a check in the amount of $500.00 to pay for his bail and his check bounced, which caused the company to put out a warrant for his arrest.  Once his bond was revoked, the courts decided that he would serve out the rest of his time in jail.  The applicant was confined from approximately 23 September 1998 until 16 October 1998.  During his counseling the applicant was told that it was his responsibility to ensure that he had sufficient funds in his checking account to cover his checks.

5.  On 18 April 1999, a member of the company in which the applicant served received information from the police department that the applicant pushed his spouse backwards, causing her to fall and strike her head on the coffee table during an argument that turned physical.  According to the police report, the applicant was arrested, transported to the police department, and jailed.

6.  The company commander was notified on 12 May 1999 that the Fort Hood Case Review Committee (CRC) had completed an evaluation of the applicant's alleged spouse abuse incident and that the CRC determined the incident to be substantiated with the applicant as the offender and unsubstantiated for abuse by the applicant's wife against him.  The CRC approved a treatment plan for the applicant which included a recommendation for separation from the service for subsequent acts of spouse abuse.  According to the notification, the applicant did not complete a men’s treatment group that he was enrolled in as part of his treatment.  The CRC recommended that he be command directed to comply with the treatment plan and that if he failed to progress in treatment, he be considered for separation under the provisions of Army Regulation 635-200.

7.  The applicant was counseled on 27 May 1999 for failure to be at muster formation.  He was informed that if his conduct continued, it could be cause for separation action to be initiated against him.

8.  On 4 June 1999, the CRC notified the applicant's commander that the applicant had been evaluated at the Department of Social Work per a law enforcement referral and that he enrolled in the men's group consisting of twelve sessions.  The CRC stated that the applicant failed to attend three therapy sessions, which constituted a treatment failure.  The applicant was terminated from the treatment program due to his lack of participation and the CRC recommended that separation action be initiated against him for spousal maltreatment.

9.  On 28 June 1999, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct – commission of a serious offense.  His commander cited a conviction by civilian authorities for bouncing a check, assault consummated by battery, and counseling for failure to be at his appointed place of duty as the bases for his recommendation for discharge.  His commander stated that he was recommending the issuance of a discharge under honorable conditions (general).

10.  The applicant acknowledged receipt of the notification for discharge and, after consulting with counsel, he waived his rights to have his case considered by a board of officers; however, he elected to submit a statement in his own behalf.  In his statement, he declared his love for this country and his job and he stated that he had tried everything in his power to control his family.  He stated that he never physically touched his wife and that he was unable to force her to get counseling or to return to their home.  He stated that his wife had verbally abused everyone in his chain of command and that he intended to try to get her counseling once he returned to civilian life.  The applicant stated that he would truly miss being a Soldier for the greatest Army in the world and that if he must leave the military he should be let go with his head only "halfway down."  He requested that he be furnished an honorable discharge instead of a general discharge.

11.  The appropriate authority approved the recommendation for discharge on 5 August 1999 and recommended the issuance of a General Discharge Certificate.  Accordingly, on 1 September 1999, the applicant was discharged under honorable conditions, under the provisions of Army Regulation 635-200, chapter 14-12c, for misconduct.  He had completed 6 years, 6 months, and       20 days of total active service and he was furnished a General Discharge Certificate.

12.  A review of the available records does not show that the applicant was suffering from any medically unfitting disability which required physical disability processing.  

13.  The applicant submits a copy of his VA Rating Decision which indicates that he has been awarded compensation for medical conditions which that agency has determined to be related to military service.

14.  Army Regulation 635-200 (Enlisted Personnel Separation) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion, or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.

15.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the type of separation that he received and the narrative reason for his separation should be changed from discharge for misconduct to retirement by reason of physical disability.

2.  The contentions made by the applicant have been noted.  However, as previously stated, a review of the available records does not show that the applicant was suffering from any medically unfitting disability which prevented him from performing his military duties and that required physical disability processing.  The evidence of records show that discharged for misconduct as a result of bouncing a check, assault consummated by battery and counseling for failure to be at his appointed place of duty.

3.  The type of discharge that he received and the reasons therefore were appropriate and the fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

4.  The applicant has failed to show error or injustice in the type of separation that he received and the narrative reason for his discharge.

5.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___  DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   _X_____   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090015524



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ABCMR Record of Proceedings (cont)                                         AR20090015524



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