IN THE CASE OF:	  

		BOARD DATE:	    4 November 2010

		DOCKET NUMBER:  AR20100012282 


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 item 28 (Narrative Reason for Separation) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from unsatisfactory performance to physical disability.  

2.  The applicant states he was discharged based on his inability to perform tasks due to his injuries.  He claims he injured his knee in basic training and was in constant pain from either standing or walking.  

3.  The applicant provides excerpts of his medical records. 

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 record shows he enlisted in the Regular Army and entered active duty on 6 April 2000.  He was trained in, awarded, and served in military occupational specialty (MOS) 62J (General Construction Equipment Repairer).   

3.  The medical records provided by the applicant show he injured his left knee while attending basic training and underwent arthroscopic surgery on 
20 November 2001.  His records also show he had several complaints of chronic knee pain, swelling and locking and received medical treatment for these ailments. 

4.  A copy of a DA Form 3822-R (Report of Mental Status Evaluation), dated 
23 May 2002, shows the applicant underwent a mental status evaluation.  The applicant’s behavior was normal and he was fully alert and as a result, was cleared for administrative action deemed appropriate by the command.

5.  On 26 August 2002, the unit commander notified the applicant he was considering separating him under the provisions Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsatisfactory performance.  The commander listed the specific factual reasons for the action was due to the applicant's receipt of nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ), several written and verbal counselings, and his violation of several Articles of the UCMJ.  The applicant acknowledged receipt of the commander’s intent and signed the form on 
26 August 2002.

6.  The applicant was advised by counsel on the basis for the contemplated action to separate him for unsatisfactory performance under the provisions of chapter 13, Army Regulation 635-200.  He elected not to submit any statements.  The applicant indicated that he understood he may expect to encounter substantial prejudice in civilian life if he was issued a general discharge under honorable conditions.

7.  The appropriate authority approved the recommendation and directed he be furnished a General Discharge Certificate. 

8.  The applicant's DD Form 214 shows that he was discharged on 18 October 2002, under the provisions of Army Regulation 635-200, chapter 13.  Item 24 (Character of Service) confirms the applicant's discharge was Under Honorable Conditions (General) and item 28 confirms his discharge was for Unsatisfactory Performance.  He had completed 2 years, 6 months, and 13 days of total active service, and 2 years and 1 month of foreign service. 

9.  On 24 March 2009, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  The ADRB denied the applicant's request and made the determination that the reason for his discharge was both proper and equitable. 

10.  A review of the applicant's records failed to show any indication he was diagnosed as having a medical condition that would have contributed to his misconduct or unsatisfactory performance.

11.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a Soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until Soldier is scheduled for separation, is an indication that the individual is fit.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to change the narrative reason for separation from unsatisfactory performance to physical disability was carefully considered.

2.  He has failed to show through the evidence submitted and the evidence of record that separation through medical channels was warranted at the time of separation or that he was not found fit for separation.  Evidence shows the applicant's separation was based upon substandard performance as a Soldier, which included NJP, written and verbal counselings, and several Article violations under the UCMJ.  


3.  The applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Therefore, there is no basis 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)                                         AR20100012282



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ABCMR Record of Proceedings (cont)                                         AR20100012282



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