IN THE CASE OF:	  

		BOARD DATE:	  14 October 2010

		DOCKET NUMBER:  AR20100009160 


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, that his honorable discharge be changed to a medical discharge.

2.  The applicant states that after a review of his service medical records provided by the National record repository, he found provisions under which he should have received a medical discharge instead of the discharge he received.  He states there was no medical record inspection at the out-processing station when he was discharged.  He states this failure to inspect his medical records has created hardship, continual medical declination, and denial of benefits on the basis of conditions contracted while on active duty.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 9 August 1989.

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 military personnel records show he enlisted in the Regular Army on 11 June 1979 and served continuously on active duty until the date of his discharge.  His last reenlistment was on 14 September 1987 for a period of 4 years.

3.  A DA Form 2166-7 (Noncommissioned Officer Evaluation Report (NCOER)) for the period June to October 1988 showed the applicant as successful in his competence, leadership, training, and responsibility, and accountability.  The NCOER noted he needed improvement in his physical fitness due to his lack of endurance to complete runs.  The NCOER noted he demonstrated an inability to properly manage money and his personal affairs must be fixed before he would be considered for more challenging assignments.

4.  On 17 November 1988, the applicant was given a locally-imposed bar to reenlistment due to his record of non-payment of just debts.  He indicated he would not appeal the bar to reenlistment.

5.  On 19 December 1988, the applicant was removed from the recommended promotion list for staff sergeant.

6.  On 13 June 1989, the applicant's commander recommended his bar to reenlistment remain in place.

7.  On 14 June 1989, the applicant requested discharge under the provisions of paragraph 16-5(b) of Army Regulation 635-200 (Personnel Separations).  He stated he would not be able to overcome the bar to reenlistment during his current enlistment.  He also stated that if his request for separation were approved, it would be for his own convenience.

8.  His request for discharge was approved and he was discharged on 9 August 1989 by reason of a locally-imposed bar to reenlistment.  He completed 10 years, 1 month, and 29 days of active service that was characterized as honorable.

9.  There is no evidence in the applicant's military personnel records of him having been diagnosed with any mental or physical condition by which he was determined not to be medically qualified to perform duty or failed to meet medical retention criteria.

10.  The applicant's service medical records were not available for review.

11.  References:

	a.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEB). 
Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

	b.  Army Regulation 635-40, paragraph 2-2b(1) then in effect, provided that when a member was being separated by reasons other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she was scheduled for separation or retirement created a presumption that he or she was fit.  This presumption could be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time 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.

	c.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 16-5b provided that Soldiers who perceived that they would be unable to overcome a locally-imposed bar to reenlistment could apply for immediate discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that upon review of his service medical records, provisions were identified by which he should have received a medical discharge.

2.  The applicant specifically requested discharge prior to the expiration of his term of enlistment because he did not feel he could overcome the locally-imposed bar to reenlistment.  He acknowledged this discharge was for his own convenience.

3.  The applicant's latest NCOER gave no indication that he was unable to perform the duties of his military occupational specialty.

4.  The applicant's service medical records were not available for review.  There is no evidence in his military personnel records he was not medically qualified to perform his duties or that he failed to meet medical retention criteria.  
5.  In view of the above, there is insufficient basis change the reason for the applicant's discharge to a medical 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)                                         AR20100009160



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)