IN THE CASE OF:	  

		BOARD DATE:	  21 September 2010

		DOCKET NUMBER:  AR20100008974 


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 the narrative reason for his separation to show he was medically discharged.

2.  The applicant states he joined the military and did not have any injuries related to his back, leg, or shoulder. 

   a.  He states he injured his back in basic combat training (BCT) during physical training and he was treated for shin splints due to marching and running.  He adds he also suffered a rotator cuff injury in his right shoulder during BCT.

   b.  He states that his squad leader mentioned the possibility of a medical discharge, but also suggested he shouldn't worry about it since he was being separated from the Army.

   c.  He states that the injuries he sustained while in the Army have limited his physical activity.

3.  The applicant provides copies of 17 medical documents.

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.  A Standard Form (SF) 88 (Report of Medical Examination), dated 26 October 1998, shows in:

* the Clinical Evaluation section, item 36 (Feet), the examining doctor placed a checkmark in the "abnormal" column
* item 73 (Notes and Significant or Interval History) the examining doctor entered "Deep cut wound left leg - resolved"
* item 73 a waiver was recommended, granted, and approved on
26 October 1998
* item 74 (Summary of Defects and Diagnoses) it is absent any indication of injury or abnormality of the applicant's back or shoulder
* item 77 (Examinee) the doctor placed a checkmark in the block "Is Not Qualified For" and entered the stamp "DAR [Department of the Army Reserve]"
* item 77 the applicant was advised of his disqualifying condition

3.  An SF 507 (Clinical Record - Continuation of SF 88), dated 26 October 1998, shows the request for medical waiver was reviewed and approved by the Command Surgeon on 6 November 1998.

4.  The applicant enlisted in the U.S. Army Reserve on 12 November 1998 and he enlisted in the Regular Army (RA) for a period of 5 years on 6 July 1999.  Upon completion of training he was awarded military occupational specialty 95B (Military Police).

5.  The applicant served in Hawaii from 21 November 1999 to 1 May 2001.

6.  A DA Form 4856 (Developmental Counseling Form) shows the applicant's squad leader counseled him concerning his failure of the Army Physical Fitness Test (APFT) on 9 February 2000.  It also shows the applicant improved his test score by 30 points and passed the APFT on 28 April 2000, and he also received a Certificate of Achievement for his performance on the APFT.


7.  On 22 March 2001, the applicant's commander notified the applicant that she was initiating action to discharge him from the U.S. Army under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b, based on a pattern of misconduct.  The commander's reasons for her proposed action were the applicant not being at his appointed place of duty; disobeying an order from a noncommissioned officer; dereliction of duty; and having received nonjudicial punishment for attempting to steal private funds, actually stealing private funds, and for writing bad checks.  The applicant was advised of his rights and the separation procedures involved.

8.  On 26 March 2001, the applicant acknowledged that he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.

   a.  He acknowledged that military legal counsel for consultation was available to assist him.
   
   b.  He elected not to submit statements in his own behalf.

   c.  He was advised he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions is issued to him.

   d.  The applicant acknowledged he understood that if he received a discharge certificate/character of service which was less than honorable, he could make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, an act of consideration by either board did not imply that his discharge would be upgraded.

   e.  The applicant placed his signature on the document.

9.  On 26 March 2001, the company commander recommended that the applicant be separated under the provisions of AR 635-200, paragraph 14-12b, based on a pattern of misconduct.

10.  The battalion commander recommended approval of the applicant's separation with a character of service of under honorable conditions.

11.  On 11 April 2001, the separation authority approved the applicant's separation with a general discharge under honorable conditions.


12.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 3 May 2001 under the provisions of AR 635-200, paragraph 14-12b, based on a pattern of misconduct, and his service was characterized as under honorable conditions.  At the time he had completed 1 year, 9 months, and 28 days of net active service this period.

13.  There is no evidence the applicant was referred to a Medical Evaluation Board or Physical Evaluation Board for evaluation of any medical condition(s).

14.  In support of the application the applicant provides copies of 17 medical documents that, in pertinent part, show he was treated for back, leg, and shoulder pain during the period 20 July to 6 December 1999.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, sets forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.

	a.  Paragraph 3-1 (Standards of unfitness because of physical disability) provides 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.

	b.  Paragraph 3-2 (Presumptions), subparagraph b, provides that when a Soldier is being separated or retired for reasons other than physical disability, continued performance of assigned duty commensurate with his rank or grade until the Soldier is scheduled for separation, creates a presumption that the Soldier is fit.  The presumption of fitness can be overcome if the evidence establishes that he was unable to perform his duties, or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

16.  AR 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, 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.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the narrative reason for his separation should be changed to show he was medically discharged because of injuries he sustained during basic combat training.

2.  The evidence of record shows the applicant was granted a medical waiver for his medical conditions in order to enlist in the U.S. Army.

3.  After entering active duty on 6 July 1999, the applicant received medical treatment for back, leg, and shoulder pain during the period from 20 July to
6 December 1999. 

4.  The evidence of record shows the applicant passed the Army Physical Fitness Test on 28 April 2000.

5.  There is no evidence, and the applicant provides insufficient evidence, to show he was unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  Thus, the evidence does not support the applicant's contention that he had a physically unfitting condition at the time of his discharge.  Therefore, the applicant is not entitled to a medical discharge.

6.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  Therefore, the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

7.  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.


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)                                         AR20100008974



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ABCMR Record of Proceedings (cont)                                         AR20100008974



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