IN THE CASE OF:	  

		BOARD DATE:	  28 September 2010

		DOCKET NUMBER:  AR20100010977 


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 the reason for his discharge be changed from hardship to disability.  

2.  The applicant states the reason for his discharge should have been disability and not hardship because of his multiple disabilities.  He claims he thought hardship was disability but the Department of Veterans Affairs (VA) and Department of Defense (DOD) officials informed him it is not and needs to be changed.

3.  The applicant further states he was 60 percent (%) disabled based on service-connected disabilities when he got out of the Army.  He further states he had a disabled child but this did not affect his service.  He states he had to get out of the Army early because of his service-connected disabilities.  He states he believes the wrong reason for his discharge was put on his DD Form 214 (Certificate of Release or Discharge from Active Duty).  He states he is now 100% disabled and unemployable.

4.  The applicant provides his DD Form 214 and refers to a VA Regional Services Officer in Roanoke, VA.

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.  On 10 February 1994, the applicant submitted a request for a voluntary discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 6, due to hardship.  The applicant cited his reason for his request was that he was financially unable to support his wife and three children as long as he continued on active duty.  He stated two daughters required specialized medical care which was not fully covered by the military medical system.  He further stated he had several contacts with civilian trucking companies and he had been offered employment.  He stated caring for his family was his top priority and transitioning to civilian life would enable him to provide them with the necessary income and health benefits.  He concluded by indicating approval of his request would be in the best interest of the Army, his family, and himself and it would provide him the opportunity to properly care for his family.

3.  A Fort Riley (FR) Form 142 (Commander’s Interview Sheet) completed in conjunction with the applicant’s request for hardship discharge contains the applicant’s cited reasons for his hardship discharge request.  These included family medical problems related to illnesses suffered by his two daughters and the medical bills related to these problems.  The applicant also stated the only solution was hardship discharge which would allow him to get better medical coverage and allow him to earn three times the money he was earning in the Army.  Statements supporting the applicant’s request from his commander and the chaplain both confirm the reason for discharge was hardship related to the medical difficulties of his daughters and the associated medical bills.

4.  On 8 March 1994, the separation authority approved the applicant’s discharger under the provisions of Army Regulation 635-200, chapter 6, by reason of hardship.

5.  The applicant’s record is void of any medical records indicating he was suffering from a disabling medical condition that would have precluded his further service at the time of his discharge.

6.  On 6 April 1994, the applicant was honorably discharged, in the rank/grade of sergeant (SGT)/E-5, after completing 13 years and 26 days of active service.  The DD Form 214 he was issued confirms he was separated under the provisions of Army Regulation 635-200, chapter 6, by reason of hardship.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army.  Paragraph 6-1 states that separation under this chapter is for the convenience of the Government.  Paragraph 6-3, states that Soldiers of the Active Army and the Reserve Components may be discharged or released because of genuine dependency or hardship.  The regulation provides that hardship exists when, in circumstances not involving death or disability of a member of a Soldier’s (or spouse’s) immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship. 

8.  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.

9.  Chapter 3 of the same regulation contains guidance on standards of unfitness because of physical disability and states the following in the paragraphs indicated:

	a.  Paragraph 3-1 - 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 his or her office, grade, rank, or rating;

	b.  Paragraph 3-2b(1) - Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service; and

	c.  Paragraph 3-2b(2) - When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.


10.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the reason for his discharge should be changed from hardship to disability has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant voluntarily requested a hardship discharge in order to care for his family financially and to provide better medical benefits for his daughters.  There is no evidence of record or independent evidence provided by the applicant indicating he suffered from a disabling medical condition that would have disqualified him from further service or warranted his separation processing through medical channels at the time of his discharge.

3.  By law and regulation, the mere presence of impairment does not, in and 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 due to his office, grade, rank, or rating.  Further, treatment and compensation for service connected medical conditions that did not disqualify a member from further service at the time of discharge is the responsibility of the VA.  The applicant is advised he should pursue any claims he has for service connected medical conditions that did not disqualify him from service through the VA. 

4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20100010977



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ABCMR Record of Proceedings (cont)                                         AR20100010977



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