IN THE CASE OF:	  

		BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20100007349 


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, in effect, to change his discharge to a medical retirement.

2.  The applicant states, in effect, when he separated from the Army he was on crutches resulting from a terrible car accident.  He contends he was almost paralyzed and had minimal usage of his extremities.  

3.  He states he has been fighting this issue but has been told lies throughout the process.  His medical records are currently with the Department of Veterans Affairs (VA); however, they claim to have lost them. 

4.  The applicant has not provided any documents 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 records show he initially enlisted in the U.S. Army Reserve (USAR) for a period of 8 years on 6 August 1986 under the Delayed Entry Program (DEP).  He was discharged from the DEP and enlisted in the Regular Army on 29 August 1986 for a period of 4 years.  He was trained in and awarded military occupational specialty 51M (Firefighter).  On 30 October 1987, the applicant extended his Regular Army enlistment for an additional 17 months making his total enlistment period 5 years and 5 months.

3.  A review of the applicant's record shows he received 11 records of counseling during the period 25 March 1988 through 29 December 1988.  He also accepted three counts of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 6 July 1988 – failure to obey a lawful order
* 7 November 1988 – assault and battery
* 2 December 1988 – failure to obey a lawful order

 4.  On 5 January 1989, the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200 (Enlisted Separations), chapter 14-12b, for patterns of misconduct.  He based his reason on the applicant’s failure to obey orders, irresponsible behavior, and excessive indebtedness.  The applicant consulted with counsel and waived his rights.  He elected to submit a statement in his own behalf.

5.  In the applicant's statement, he provides he was aware that he had not been the best Soldier because of his personal problems.  He understood the problems he was having with his wife would not be tolerated in the Army because he loses with wife and also with the Army.  He contends he has asked his chain of command for help concerning the matters with his wife.  He started a debt liquidation plan to help resolve the problem concerning his indebtedness.  He also applied to work part-time with a local fire department to make extra money to help clear up his debt.  He states he loves his wife and children and wants to 


do what is right for them and does not want to get out of the Army.  He ends by stating he felt like he would lose his family if he were put out of the Army on a chapter action. 

6.  On 13 January 1989, the commander initiated a recommendation for separation under the provisions of chapter 14-12b of Army Regulation 635-200.  A review of this document shows the applicant underwent a mental status evaluation and a medical examination which cleared him for separation. 

7.  On 19 January 1989, his intermediate commander recommended approval of his separation and requested the action be expedited in order to accomplish a quick release from the service. 

8.  The appropriate separation authority approved the applicant’s discharge and directed the issuance of a General Discharge Certificate.

9.  On 2 March 1989, the applicant received a general discharge under honorable conditions under the provisions of Army Regulation 635-200, chapter 14, for misconduct – pattern of misconduct.   He served a total of 2 years, 
6 months, and 5 days of active service, and 1 year and 2 days of foreign service.  His DD Form 214 shows he had no lost time.  

10.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) to change his discharge.  

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, commission of a serious offense, conviction 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

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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.  Chapter 3 provides guidance on presumptions of fitness.  It states that the mere presence of impairment did 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 his or her office, grade, rank, or rating.  

13.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to change his discharge to a medical retirement was carefully considered; however, it is not supported by the evidence.

2.  The evidence of record shows he was medically cleared for separation under chapter 14-12b of Army Regulation 635-200, and there is no evidence which shows he was evaluated for a medical disability stemming from a car accident.   

3.  The applicant contends he should have been medically retired due to his permanent disability sustained during a car accident prior to his separation.  He stated was almost paralyzed and had minimal usage of his extremities.  An accident of this magnitude, occurring on active duty, would require a formal line of duty investigation and medical treatment of some sort.  His records are void of any documentation showing either occurred. 

4.  The available evidence shows the applicant was properly discharged and all his administrative rights were adhered to.  The applicant has submitted neither sufficient evidence nor a convincing argument in support of his request.  Consequently, his request for medical retirement should be denied.  

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)                                         AR20100007349





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ABCMR Record of Proceedings (cont)                                         AR20100007349



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