BOARD DATE:	  10 November 2010

		DOCKET NUMBER:  AR20100012094


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 that he be given an honorable discharge by reason of physical disability.

2.  The applicant states he received a general discharge in 2008; however, he should have received an "Honorable Medical Discharge" more than a year earlier.  He states he met with medical personnel in December 2006 who were going to give him a permanent physical profile for spondylolisthesis and recommended that he undergo a physical disability evaluation.  The physical disability evaluation process was to begin in January 2007, but he got into legal trouble while home on leave.

3.  The applicant provides:

* a typewritten statement
* five DA Forms 3348 (Physical Profile) for temporary profiles for spondylolisthesis
* two documents from Southern Illinois University School of Medicine Center for Family Medicine
* Department of Veterans Affairs (DVA) health records

CONSIDERATION OF EVIDENCE:

1.  The applicant served on active duty in the Regular Army from 2 June 2004 to 19 February 2008.  His service records are contained in iPERMS (Interactive Personnel Electronic Records Management System), the Army's web-based Official Military Personnel File (OMPF) system.

2.  There are no medical records in the applicant's iPERMS file.  He provided five DA Forms 3349 showing that between October 2006 and November 2007, he received temporary physical profiles for his upper and lower extremities.  There is no record he ever entered the Army's physical disability evaluation system (PDES).

3.  On 17 January 2007, the applicant was indicted by a grand jury for the Circuit Court of the Fourth Judicial Circuit, Christian County, IL for the offense of "indecent solicitation of a child, in that [applicant did]…with the intent that the offense of aggravated criminal sexual abuse be committed, knowingly solicited a person whom the applicant believed to be a child [age 13], to perform an act of sexual penetration…."  The result of the indictment is unknown; however, the applicant is listed as a sex offender by the State of Illinois.

4.  The criminal complaint shows the applicant engaged in an instant messaging (IM) conversation with a 34-year old woman posing as a 13-year old girl.  In the conversation, the applicant urged "13-year old girl" to meet him at 0200 hours at a rendezvous spot.  When he arrived at the rendezvous spot, he was met by police and charged with indecent solicitation of a child.

5.  On 13 February 2008, the applicant's commander initiated separation action against the applicant for misconduct under the provisions of chapter 14, Army Regulation 635-200 for misconduct.  The cited misconduct was "indecent solicitation of a child with the intent of aggravated criminal sexual assault."  The applicant acknowledged notification, consulted with legal counsel, and waived consideration of his case by an administrative separation board.  On 14 February 2008, the approving authority approved separation with a general discharge.

6.  On 19 February 2008, the applicant was separated with a general discharge under the provisions of paragraph 14-12c, Army Regulation 635-200 for misconduct (serious offense).

7.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  The ADRB, after considering his case on 1 April 2009, denied his request.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army's 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

9.  Soldiers must be referred to the PDES; if a treating physician believes that a Soldier is unable to perform full military duty or is unlikely to be able to do so within a reasonable period of time, normally 12 months.  The Soldier is referred to a Medical Evaluation Board (MEB) at the Medical Treatment Facility where treatment is being provided.  The MEB is an informal process comprised of at least two physicians who compile, assess, and evaluate the medical history of a Soldier and determine if the Soldier meets, or will meet, retention standards.  If the Soldier meets retention standards, the Soldier is returned to duty in his/her respective or current Military Occupational Specialty (MOS).  If the Soldier does not meet retention standards, the case will be referred to a Physical Evaluation Board (PEB) for further disposition and determination of fitness.

10.  Army Regulation 635-40 also provides an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.  Separation under chapter 14, Army Regulation 635-200 authorizes discharge under other than honorable conditions.

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, convictions by civil authorities, desertion or absence without leave.  Chapter 14 discharges may be characterized as honorable, under honorable conditions, or under other than honorable conditions.

12.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests an honorable discharge by reason of physical disability.

2.  The applicant's medical records are not contained in his iPERMS records; however, he provided evidence he was being treated for back problems and had received temporary physical profiles for his back problems.  There is no evidence the applicant was ever referred to the PDES or given an MEB or PEB.  Without such a referral a disability separation is not possible.

3.  The applicant was administratively discharged for misconduct.  By regulation, even if he had been referred to the PDES, disability processing would have ceased because of the nature of his pending separation.

4.  The applicant allegedly committed a serious offense.  He was indicted by a grand jury.  Although the results of that indictment are not known, it is known that he was placed on the sex offender registry for the State of Illinois.

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)                                         AR20100012094



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ABCMR Record of Proceedings (cont)                                         AR20100012094



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