IN THE CASE OF:	  

		BOARD DATE:	  1 April 2010

		DOCKET NUMBER:  AR20090015697 


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 upgrade of his general discharge, under honorable conditions to either a medical discharge or an honorable discharge.

2.  The applicant states, in effect, that after appealing a disability claim with the Department of Veterans Affairs (VA), he was awarded a 40 percent disability rating due to depression disorder, for which he is currently receiving compensation.  He feels this depression contributed to his misconduct during his military service and should be properly reflected in the nature of his discharge.

3.  The applicant provides no documentary evidence in support of his application. He states this is his second attempt to get his discharge upgraded; therefore, his discharge and all previous records should be on hand.  He further states he will provide his VA disability letter upon request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army on 3 June 1999. He completed basic combat training and advanced individual training (AIT).  Upon completion of AIT, he was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he attained while serving on active duty was specialist (SPC)/E-4.  However, at the time of separation he held the rank/grade of private (PV1)/E-1.

2.  The applicant's record reveals a disciplinary history that includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions.

	a.  On 14 June 2002, for violating Article 86 by absenting himself, without authority, from his appointed place of duty on one occasion and failing to go to his appointed place of duty at the time prescribed on two occasions.  His punishment included reduction to private first class (PFC)/E-3, a forfeiture of $300 pay for 2 months, 45 days of restriction, and 45 days of extra duty.

	b.  On 7 August 2002, for violating Article 108 by willfully damaging government property in order to gain forceful entrance into a government building.  His punishment included reduction to private (PV1)/E-1, a forfeiture of $620 pay for 2 months (suspended for 3 months), 45 days of restriction, and 
45 days of extra duty.

3.  On 24 July 2002, the applicant’s unit commander notified him he was initiating action which could result in his separation from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c(1), for commission of a serious offense consisting of being absent without leave (AWOL) or desertion from his unit from 22 April until 19 May 2002.

4.  The unit commander recommended that the applicant be issued a general discharge under honorable conditions.  The unit commander also informed the applicant that the least favorable characterization of service that he could receive was a general discharge.  The unit commander continued by advising the applicant of his rights to consult with legal counsel, to submit written statements in his own behalf, to obtain copies of the documents that would be sent to the separation authority supporting the proposed separation action, to a hearing before an administrative board if he had six or more years of active and Reserve military service at the time of separation, to waive these rights in writing, and to withdraw his waiver of any of these rights at any time prior to the date the discharge authority directed or approved his separation.  The applicant acknowledged receipt of this notification on 24 July 2002.

5.  On 26 July 2002, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation action, its effects and the rights available to him, he acknowledged he understood that if he was issued a general discharge, he could expect to encounter substantial prejudice in civilian life.

6.  The applicant’s unit commander recommended that he be separated from the Army under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for commission of a serious offense.  The commander cited the applicant's AWOL status during the period 22 April to 19 May 2002 as the specific factual reason for this action.  The commander also stated the applicant was counseled about subsequent behavior that demonstrated a lack of acceptance of rehabilitative measures.  The commander concluded the applicant had demonstrated through repeated misconduct, after formal counseling, that any other disposition would be inappropriate.

7.  The separation authority approved the unit commander's request, and directed that the applicant be separated under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(1), with a General Discharge Certificate.

8.  On 16 August 2002, the applicant was discharged accordingly.  Block 24 (Character of Service) of the DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was issued a general discharge.  Block 25 (Separation Authority) shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c.  Block 26 of this form shows he was assigned a Separation Program Designator code of "JKQ."  Block 28 (Narrative Reason for Separation) shows "Misconduct."  Block 29 (Dates of Time Lost During This Period) shows the applicant had lost time during the period 22 April to 19 May 2002.

9.  There is no evidence in the available records and the applicant has failed to provide any evidence which shows he was referred to the Army Physical Disability Evaluation System (PDES) for consideration by either a Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB) prior to his discharge.

10.  On 28 April 2008, the President of the Army Discharge Review Board (ADRB) informed the applicant, after careful review of his military records and all other available evidence, the ADRB determined he was properly and equitably discharged.  Accordingly, his request for a change in the characterization of his discharge was denied.

11.  Army Regulation 635-200 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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  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 appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.

12.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality 
of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

14.  Chapter 61, Title 10, United States Code (USC) provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The United States Army Physical Disability Agency, under the operational control of the Commander, United States Army Human Resources Command, Alexan-dria, VA, is responsible for operating the PDES and executes Secretary of the Army decision-making authority as directed by Congress in Chapter 61, 10 USC, and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40.  Soldiers enter the PDES four ways: 

	a.  A Soldier is referred to an MEB when a Soldier has received maximum benefit of medical treatment for a condition that may render the Soldier unfit for further military service.  The medical treatment facility conducts an MEB to determine whether the Soldier meets the medical retention standards of Army Regulation 40-501, chapter 3.  If the Soldier does not meet medical retention standards, he or she is referred to a PEB to determine physical fitness under the policies and procedures of Army Regulation 635-40.  Soldiers are referred as a result of:

	b.  an MOS/Medical Retention Board (MMRB).  The MMRB is an administrative screening board the chain of command uses to evaluate the ability of Soldiers with permanent 3 or 4 medical profiles.  The MMRB determines whether a Soldier can physically perform in a worldwide field environment in their primary military occupational specialty.  Referral to an MEB/PEB is one of the actions the MMRB Convening Authority may direct; 

	c.  a fitness for duty medical examination.  When a commander believes a Soldier is unable to perform his MOS-related duties due to a medical condition, the commander may refer the Soldier to the medical treatment facility for evaluation.  If evaluation results in a MEB, and the MEB determines the Soldier does not meet medical retention standards, the Soldier is referred to a PEB; and 

	d.  a Headquarters Department of the Army action.  The Commander, U.S. Army Human Resources Command, upon recommendation of the Surgeon General, may refer a Soldier to the responsible medical treatment facility for medical evaluation as described above.  The U.S. Army Human Resources Command also directs referral to a PEB when it disapproves the MMRB's recommendation to reclassify a Soldier into a different MOS.

15.  Title 38, USC, 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's contention that his record should be corrected by upgrading his general discharge under honorable conditions to either a medical discharge or an honorable discharge was carefully considered and determined to be without merit.

2.  There is no evidence in the available records and the applicant has failed to provide any evidence which shows he had a medical condition or was referred to the Army PDES for consideration by either an MEB or a PEB prior to his discharge. 

3.  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 of itself, establish physical unfitness for Department of the Army purposes.

4.  The record shows the applicant had multiple disciplinary infractions.  In spite of his indiscipline, his chain of command was willing to allow him to remain on active duty and continue to serve.  The available evidence shows he was not responsive to the rehabilitative efforts of his command.

5.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

6.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his general discharge to either a medical discharge or an honorable discharge.

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)                                         AR20090015697



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ABCMR Record of Proceedings (cont)                                         AR20090015697



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