IN THE CASE OF:	  

		BOARD DATE:	  8 September 2010

		DOCKET NUMBER:  AR20100009952 


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 his honorable discharge be changed to a medical discharge.

2.  The applicant states he was never given a medical evaluation board (MEB).  In 1992, he was placed on hold pending an MEB.  His unit, however, processed him out without the opportunity of an MEB or the proper test to find the reason for his illness.  He had chest pain muscle spasms and he was placed on limited duty.  His x-rays were still pending when separation action was initiated against him.  None of his medical issues were addressed and he was told the administrative separation for misconduct took precedence over his medical condition unless he needed hospitalization.  He feels he was treated unjustly and wants the justice he deserves.

3.  The applicant provides the following documents:

* emergency care treatment record, dated 3 February 1992
* Standard Form 513 (Consultation Sheet), dated 3 February 1992
* medical document, dated 5 February 1992
* Standard Form 93 (Report of Medical History), dated 20 February 1992
* Standard Form 88 (Report of Medical Examination), dated 20 February 1992
* DA Form 5181-R (Screening Note of Acute Medical Care), dated 10 March 1992
* Standard Form 600 (Chronological Record of Medical Care), dated 20 March 1992

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 enlisted in the Regular Army for a period of 3 years on 29 October 1986 and held military occupational specialty 76V (Materiel Storage and Handling Specialist).  He also executed a 4-year reenlistment on 24 May 1989.  He was promoted through the ranks to specialist four/E-4.

3.  The applicant's records show he served in Southwest Asia from 12 September 1990 to 10 April 1991.  He was awarded the Army Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), National Defense Service Medal, Air Assault Badge, Army Good Conduct Medal, Driver Badge, and Noncommissioned Officer Professional Development Ribbon.

4.  The applicant's records contain multiple counseling statements by different members of his chain of command for various infractions, including instances of failure to be at the appointed place of duty, failure to report, failure to repair, multiple instances of missing his driver's license, writing bad checks, failure to pay just debts, and multiple letters of indebtedness.

5.  On 3 April 1989, he was arrested by the Fort Campbell, KY, Military Police for being involved in a verbal altercation and/or assault with another Soldier.

6.  On 4 May 1989, he received a letter of reprimand for committing assault against another Soldier.

7.  On 8 September 1989, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully having a female visitor in his room.

8.  On or about 25 November 1991, a warrant for his arrest was issued by civilian authorities due to his continuous indebtedness and writing bad checks.

9.  On 3 January 1991, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his multiple letters of indebtedness.  He was furnished with a copy of this bar, but he elected not to submit a statement on his behalf.  The bar was ultimately approved.

10.  On 25 November 1991, he was arrested by civil authorities and transported to the Christian County Jail, KY, for the civilian charge of theft by deception.  He was released to military authorities on a monetary bond with a court date of 27 November 1991.  He was ultimately sentenced to civil confinement.

11.  On 29 April 1992, his immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation 635-200 (Personnel Separations) for misconduct for commission of a serious offense.  Specifically, his immediate commander cited his indebtedness and recommended an honorable discharge.

12.  On 29 April 1992, he acknowledged receipt of the commander's intent to separate him.  He subsequently consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He requested consideration of his case by an administrative separation board and a personal appearance before an administrative separation board.  He elected not to submit a statement on his own behalf.

13.  He further acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He also acknowledged he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.

14.  On 29 April 1992, his immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for misconduct for commission of a serious offense.  He recommended an honorable discharge.

15.  On 12 May 1992, his intermediate commander recommended approval of the applicant's discharge with the issuance of an honorable character of service.

16.  On 15 June 1992, an administrative separation board convened at Fort Campbell, KY, to determine if the applicant should be separated.  The administrative separation board determined that despite attempts to rehabilitate or develop the applicant as a satisfactory Soldier, further efforts were unlikely to succeed and rehabilitation was impractical.  The applicant's discreditable conduct was prejudicial to good order and discipline.  The board noted that there was a pattern of misconduct since 1988 with no improvement and that his conduct was detrimental to the unit.  As such, the board recommended his discharge from the Army with an honorable character of service.

17.  On 25 June 1992, the convening/separation authority approved the administrative separation board's findings and recommendations and ordered the applicant immediately discharged.  Accordingly, the applicant was discharged on 7 July 1992.

18.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 with an honorable discharge.  This form confirms he completed a total of 5 years, 11 months, and 7 days of creditable military service with 54 days of lost time.

19.  He submitted the following documents:

	a.  An emergency care and treatment record shows he was seen at the emergency room at the Fort Campbell clinic on 3 February 1992 for chest pain.  He was provided treatment and medications.

	b.  A medical document, dated 5 February 1992, shows he returned to the clinic for follow up and he was assigned light duty, no physical training, and medications.

	c.  The Standard Form 88 and Standard Form 93, dated 20 February 1992, show he underwent a physical examination on 20 February 1992 and noted prior hospital visits, but was otherwise found fit for separation.  He was assigned the number "1" in all categories of his physical profile (PULHES) indicating he was fit and had no medical or physical restrictions.

	d.  A DA Form 5181-R, dated 10 March 1992, noted his need to update his profile and consultation for surgery.

	e.  A Standard Form 600, dated 20 March 1992, noted the entries "follow up for ? MEB prior to chapter" and "chapter takes precedence unless found to need hospitalization."

20.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories include minor infractions, a pattern of misconduct, frequent involvement in incidents of a discreditable nature with civil and/or military authorities, commission of a serious offense, conviction by civil authorities, desertion, or absence without leave.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

21.  Paragraph 1-35 of Army Regulation 635-200 states that when the examining medical officer decides that a member being considered for elimination for misconduct (chapter 14) does not meet the retention medical standards, he or she will refer that member to a medical board.  The medical treatment facility commander will furnish a copy of the approved board proceedings to the commander exercising general court-martial convening authority (GCMCA) over the member concerned.  The commander exercising GCMCA will direct the member to be processed through disability channels per Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) when it is determined the disability is the cause or a substantial contributing cause of the misconduct or circumstances warrant disability processing instead of administrative processing.

22.  Army Regulation 635-40 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.  It provides for MEB's, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB).

23.  Army Regulation 635-40, paragraph 3-1, states the mere presence of an 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

24.  Army Regulation 635-40, paragraph 4-3, states an enlisted member may not be referred for physical disability processing when action has been started that may result in an administrative separation with a characterization of service of under other than honorable conditions.  If the case comes within these limitations, the commander exercising general court-martial jurisdiction over the Soldier may abate the administrative separation.  A case file could be referred to a PEB if the GCMCA finds the disability is the cause or a substantial contributing cause of the misconduct that might result in a discharge under other than honorable conditions or other circumstances warrant disability processing instead of alternate administrative separation.

25.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Department of Veteran's Affairs Schedule for Rating Disabilities.

26.  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 of less than 30 percent.

27.  Department of Defense Instruction 1332.38 implements policy, assigns responsibilities, and prescribes procedures for retiring or separating service members because of physical disability, making administrative determinations for members with service-incurred or service-aggravated conditions, and authorizing a fitness determination for members of the Ready Reserve.

28.  Section E3.P3.4 of Department of Defense Instruction 1332.38 states that determining whether a member can reasonably perform his or her duties includes consideration of:

	a.  Common Military Tasks.  Duties, for example, whether the member is routinely required to fire his or her weapon, perform field duty, or to wear load-bearing equipment or protective gear.

	b.  Physical Fitness Test.  Whether the member is medically prohibited from taking the respective Service's required physical fitness test.

	c.  Deployability.  When a member's office, grade, rank, or rating requires deployability, whether a member's medical condition(s) prevents positioning the member individually or as part of a unit with or without prior notification to a location outside the continental United States.

	d.  Special Qualifications.  For members whose medical condition causes loss of qualification for specialized duties, whether the specialized duties comprise the member's current duty assignment or the member has an alternate branch or specialty, or whether reclassification or reassignment is feasible.

DISCUSSION AND CONCLUSIONS:

1.  The applicant committed a serious offense in that he wrote several dishonored checks.  His chain of command initiated separation action against him under the provisions of chapter 14 of Army Regulation 635-200 for misconduct.  He appeared before an administrative separation board that subsequently recommended him for discharge.  The convening authority approved the findings and recommendations and he was ultimately issued an honorable discharge.

2.  There is no evidence in his records that shows he was physically unfit at the time of his discharge.  A Soldier is considered unfit when the evidence establishes that the Soldier is unable to reasonably perform the duties of his or her office, grade, rank, or rating.  The available evidence shows he was fully able to perform the duties of his grade and/or military occupational specialty and fully qualified for separation.

3.  The available medical records were provided by the applicant.  They do not appear to be complete.  However, the submitted medical records show he went to sick call for chest pains in February 1992 and was placed on light duty.  It also appears he took some X-rays and the results were pending.  He then underwent a separation physical that cleared him for separation.

4.  Although his separation physical contains the word MEB preceded by a question mark, this does not establish his eligibility for entry into the PDES.  Additionally, he was assigned all "1" ratings in his PULHES, indicating there were no physical restrictions.  There is no indication he was given a limiting physical profile at that time and there is no reference to a medical board during the next 5 months.

5.  Further, the reason for his separation (misconduct) was not related to any medical conditions he may have had been diagnosed with and there were no other compelling reasons for the GCMCA to proceed with PDES processing or a PEB.

6.  In the absence of evidence to the contrary, it is presumed the GCMCA was aware of the requirements of Army Regulation 635-200 with respect to any action related to medical conditions and acted accordingly.  Even if the GCMCA failed to make a determination regarding the applicant's PDES processing, this error would have been harmless because:

* the nature of the applicant's misconduct (dishonored checks) had no relation to any medical conditions he now claims (presumably chest pain)
* he presented no compelling evidence that other circumstances warranted disability processing over administrative separation

7.  The applicant failed to show through the evidence submitted or the evidence of record that he was medically/physically unfit at the time of separation and should have been processed for separation due to physical disability.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.

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)                                         AR20100009952



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ABCMR Record of Proceedings (cont)                                         AR20100009952



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