IN THE CASE OF:	  

		BOARD DATE:	  29 April 2010

		DOCKET NUMBER:  AR20090019329 


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 records to show he was medically retired.

2.  The applicant states that he served for 18 years and suffered a skull fracture in 1986 but a medical review was not done in his defense.  Yet, he was sent overseas on a 2-year assignment.

3.  The applicant did not provide any additional documentary evidence in support of his request.

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.  The applicant's record shows he initially enlisted in the Regular Army (RA) on 28 January 1972 and held military occupational specialty (MOS) 12F (Combat Engineer - Track Vehicle Crewmember).  He was honorably released from active duty on 29 October 1973.

3.  His records also show he enlisted in the RA on 1 August 1974, served through multiple extensions or reenlistments, within and outside continental United States, held MOS 12B (Combat Engineer), and attained the rank/grade of sergeant first class (SFC)/E-7.  He was assigned to the 19th Engineer Battalion, 194th Armored Brigade, Fort Knox, KY.

4.  On 15 May 1989, he was given a General Officer Letter of Reprimand (GOLOR) for operating a motor vehicle while drunk.

5.  On 10 October 1989, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for, on or about 10 August 1989, disobeying a lawful order from a general officer not to operate a privately-owned motor vehicle and for on or about 25 August 1989, disobeying a lawful order from his commanding officer not to drink alcoholic beverages during a unit deployment.  His punishment consisted of a forfeiture of $600.00 pay per month for 2 months and 45 days of extra duty.

6.  On 1 December 1989, he pled not guilty at a special court-martial to one specification of, on or about 29 October 1989, willfully disobeying a lawful order from a superior officer and one specification of, on or about 23 September 1989, violating a lawful general regulation.  He also pled guilty to one specification of wrongfully having sexual intercourse with a married woman not his wife on divers occasions between 1 September 1989 and 30 October 1989 and one specification of wrongfully having sexual intercourse with another woman not his wife on divers occasions between 1 April 1989 and 15 October 1989.  The court found him guilty of all the above charges and specifications and sentenced him to a reduction to sergeant (SGT)/E-5 and a forfeiture of $300.00 pay per month for 6 months.  The convening authority approved his sentence on 7 February 1990.

7.  On 22 June 1990, he again accepted NJP under the provisions of Article 15 of the UCMJ for disobeying a lawful order by operating a motor vehicle while his driving privileges were revoked.  His punishment consisted of a reduction to specialist four (SPC)/E-4, a forfeiture of $560.00 pay per month for 2 months, 45 days of extra duty, and 44 days of restriction.

8.  On 22 June 1990, the applicant's immediate commander initiated a DA Form 4126-R (Bar to Reenlistment Certificate) against him citing several previous 

instances of NJP and a special court-martial.  On 27 June 1990, he was provided a copy of this bar action and elected to submit a statement on his own behalf.  In his statement, he stated that he intended to retire and that the bar to reenlistment would prevent him from doing so.  He also stated that the court-martial findings and the two NJPs show guilt but not the circumstances or degree of guilt to the charges.  He further stated that he intended to Soldier and would not allow the incidents to lessen his Soldiering abilities.  His bar was subsequently approved by the appropriate authority on 14 September 1990.

9.  On 27 September 1990, he submitted a DA Form 4187 (Personnel Action) requesting a discharge from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 16, by reason of inability to overcome a bar to reenlistment.  He stated that he understood that he was being discharged for his own convenience and requested 15 January 1991 as his desired separation date.

10.  On 15 October 1990, his intermediate commander strongly recommended approval of the request for his discharge.  He remarked that based on the rapid deterioration of his personal conduct, it was in the best interest of the Army and the Soldier to authorize him an immediate discharge.

11.  On 20 October 1990, his senior commander also recommended approval and remarked that the applicant was unable to effectively perform his duties and that his retention on active duty was a detriment to efficiency, military discipline, and unit morale.  

12.  On 9 November 1990, the separation authority approved the request for voluntary discharge and on 30 November 1990, the applicant was accordingly discharged.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was honorably discharged under the provisions of Army Regulation 635-200, paragraph 16-5b, by reason of a locally imposed bar to reenlistment.  This form also shows he had completed 18 years of creditable active service and he had 1 day of time lost.

13.  His available medical records show the following:

	a.  On 28 April 1985, he was involved in a motor vehicle accident that had resulted in a depressed skull fracture in the right tempo-parietal region.  He underwent computerized tomography to the head and lumbar puncture at the University of Missouri Health Sciences Center followed by a period of physical therapy.  He was ultimately discharged from the hospital and returned to Fort Leonard Wood, MO for recuperation.
	b.  On 29 June 1988, he underwent a periodic medical examination in Bamberg, Germany and he was determined to be qualified for retention.

	c.  On 28 September 1990, he underwent a periodic medical examination at Fort Knox, KY and he was again determined to be qualified for retention.

14.  There is no indication in his service records that he was issued a permanent physical profile that restricted his duties and/or assignments or warranted his referral to the Physical Disability Evaluation System (PDES).  

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army's 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.  The mere presence of impairment does not of itself justify a finding of unfitness because of physical disability.  Although the ability of a Soldier to reasonably perform his or her duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion will not serve as the sole basis for a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member may reasonably be expected to perform because of his or her office, rank, grade or rating.

16.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his honorable discharge be changed to a medical retirement.

2.  The evidence of record shows that after a series of misconduct that included two instances of NJP, a special-court martial, and a reduction to SP4/E-4 and culminated in a bar to reenlistment, the applicant was no longer able to reenlist in the Army.  Accordingly, he voluntarily requested separation due to his inability to overcome his bar to reenlistment.  His chain of command concurred with his decision and he was honorably discharged with 18 years of creditable active service.  

3.  Although he was treated for a head injury subsequent to a motor accident in 1985, he continued to perform his duties for another 5 years before he was discharged.  The mere presence of impairment does not of itself justify a finding of unfitness because of physical disability.  Although the ability of a Soldier to reasonably perform his or her duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion will not serve as the sole basis for a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member may reasonably be expected to perform because of his or her office, rank, grade or rating.

4.  There is no evidence that he was unable to perform his duties.  The Army must find that a Soldier is physically unfit to reasonably perform his duties and assign an appropriate disability rating before the Soldier can be medically retired or separated.

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)                                         AR20090019329



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ABCMR Record of Proceedings (cont)                                         AR20090019329



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