BOARD DATE:	  25 May 2010

		DOCKET NUMBER:  AR20090018568 


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 correction of his military records to show his narrative reason for separation as physical disability.

2.  The applicant states he discovered this injustice after doing the appropriate research.  A medical discharge would provide him better military benefits and a better way of life.

3.  The applicant provides, in support of his application, a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability).

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.  On 17 October 1991, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 75D (Personnel Records Specialist).

3.  On 7 May 1992, the applicant was assigned to the 199th Personnel Service Company, located in the Republic of Korea.

4.  On 5 May 1993, the applicant returned to the United States and he was assigned to Fort Carson, Colorado.

5.  On 11 August 1994, the applicant was advanced to specialist, pay grade E-4.

6.  On 14 April 1995, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for failure to go to or from his appointed place of duty at the time prescribed (six specifications); for willfully disobeying a lawful order; and for dereliction of duty (three specifications).  His punishment included reduction to pay grade E-3 and 14 days extra duty.

7.  A DA Form 2A (Personnel Qualification Record, Part I) prepared on 
11 October 1994, reports that the applicant's physical profile and category code were 1-1-1-1-1-1A.  This form was also annotated by pen and ink to show he was reduced from specialist, pay grade E-4 to private first class, pay grade E-3 with a date of rank of 14 April 1995.

8.  DA Form 4856 (General Counseling Form), dated 11 May 1995, indicates the applicant was informed:

	a.  his reduction to pay grade E-3 meant he had reached the retention control point of 3 years of service;

	b.  he could continue to serve on active duty until his expiration term of service date which was 16 October 1996; or

	c.  he could immediately start processing for separation.

9.  The applicant's DA Form 4856 further indicates he chose to separate based on his lack of progression in the military.

10.  The applicant's administrative discharge packet is missing from his military records.  However, his DD Form 214 (Certificate or Release or Discharge from Active Duty) shows he was administratively discharged on 31 May 1995 under the provisions of Army Regulation 635-200, paragraph 16-8, due to a reduction in force.  He had completed 3 years, 7 months, and 14 days of creditable active service.  His service was characterized as honorable.

11.  Army Regulation 635-200 (Personnel Separations) provides the basic authority for the separation of enlisted personnel.  Paragraph 16-8 of this regulation sets forth the requirements for early separation of enlisted personnel due to reduction in force, strength limitations, or budgetary constraints.  The service of personnel separated under this paragraph will be characterized as honorable.

12.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling.  The code further provides at section 1201 for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) paragraph 2-9 provides that the Board begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his narrative reason for separation should be changed to physical disability because it would provide him better military benefits and better way of life.

2.  The evidence of record clearly shows the applicant elected to separate based on reduction in pay grade and lack of progression in the military.

3.  There is no available evidence showing the applicant had medical conditions incurred while entitled to receive basic pay which were so severe as to render him medically unfit for retention on active duty.

4.  In the absence of evidence to the contrary, it is presumed the applicant's discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of his discharge is commensurate with his overall record of service.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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)                                         AR20090018568



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ABCMR Record of Proceedings (cont)                                         AR20090018568



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