IN THE CASE OF:	  

		BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100012775 


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 an upgrade of his general discharge (GD) or the issuance of a medical discharge.

2.  The applicant states he was aggravated due to having a broken jaw and he not been the same since.  He requested an early release and he was punished for it.  Prior to that, he was a good Soldier and proud to serve this country.  He is now old with medical problems and believes he should have received a medical discharge. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); a copy of a Standard Form (SF) 502 (Clinical Record - Narrative Summary); and a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), which is accepted as an application to this Board.

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 4 years on 14 March 1978.  He completed the training requirements and he was awarded military occupational specialty 43E (Parachute Rigger).  The highest rank/grade he attained during his military service was private first class/E-3.  He was assigned to the 546th Transportation Battalion, Fort Bragg, NC.

3.  His records also show he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), Expert Marksmanship Qualification badge with Grenade Bar, and Parachutist Badge. 

4.  On 18 November 1979, he departed his unit in an absent without leave (AWOL) status and he returned to military control on 25 November 1979.  However, his record does not show what corrective action, if any, was taken by his chain of command. 

5.  On 4 January 1980, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty on three separate occasions.  

6.  On 1 August 1980, he again departed his unit in an AWOL status but returned on 5 August 1980.

7.  On 20 August 1980, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL, dereliction in the performance of his duties, and for failing to go at the time prescribed to his appointed place of duty (twice).  

8.  On 25 October 1980, his immediate commander advised him of his intent to initiate separation action against him under the provisions of paragraph 5-31 of Army Regulation 635-200, under the Expeditious Discharge Program (EDP). 

9.  On 25 August 1980, the applicant acknowledged notification of the proposed separate action.  On 1 September 1980, he consulted with legal counsel.  He acknowledged he had been advised of the basis for the contemplated separation action under the provisions of paragraph 5-31, Army Regulation 635-200, Personnel Separations, the effect on future enlistment in the Army, the possible effects of a GD and of the procedures and rights that were available to him.  He voluntarily consented to this separation action and declined to make a statement in his own behalf.  He further acknowledged he understood if he were issued a GD, he could expect to encounter substantial prejudice in civilian life. 
10.  On an unknown date in September 1980, his immediate commander initiated separation action against him under the EDP.  The immediate commander stated that the applicant displayed an inability to adjust both socially and emotionally to military discipline.  On an unknown date in September 1980, the separation authority waived further rehabilitation requirements and approved the applicant's discharge under the provisions of Army Regulations 635-200, paragraph 5-31, and directed that he be issued a GD Certificate.  

11.  On 6 October 1980, the applicant was discharged accordingly.  The 
DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulations 635-200, paragraph 5-31, EDP, due to failure to maintain acceptable standards for retention with a GD.  He had completed a total of 
2 years, 6 months, and 19 days of creditable active military service and he had
4 days of lost time.  

12.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  He submitted a copy of an SF 502, dated 29 November 1979, that shows the following:

	a.  He was admitted to Womack Army Hospital, Fort Bragg, on 16 October 1979 after he complained of a broken jaw/pain and alleged he had been struck on the right side of the face. 

	b.  He was diagnosed with a mandibular fracture, left sobcondyle area and right body.  He underwent treatment in the form of surgery and/or medications, and he was released in good health on 29 November 1979.  

	c.  He was assigned limited duty and placed on convalescent leave with instructions to follow up at the oral surgery clinic on a weekly basis. 

14.  There is no indication in the available medical records that his jaw injury warranted processing through the Physical Disability Evaluation System (PDES). Additionally, there is no indication he was issued a permanent physical profile or that he underwent a medical evaluation board (MEB) or a physical evaluation board (PEB).

15.  Army Regulation 635-200, in effect at the time, set for the basic authority for the separation of enlisted personnel.  The pertinent paragraph in Chapter 5 provided that members who had completed at least 6 months but less than 

36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential may be discharged under the EDP.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge.  Issuance of an honorable discharge was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade and general aptitude.  A GD is a separation from the Army under honorable conditions if an individual's military record was not sufficiently meritorious to warrant an honorable discharge.

16.  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. 

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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 MEBDs, 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 PEB.

18.  Army Regulation 635-40 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

19.  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 at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be upgraded or changed to a medical discharge was carefully considered but was found to lack merit.  

2.  Notwithstanding the applicant's contention that he was a good Soldier, the available evidence shows he accepted NJP on two occasions for multiple violations and he was also reported in an AWOL status on two occasions.  

3.  The applicant contended he requested an early release and he was punished for it.  He may be referring to the fact that it appears he consented to his discharged under the EDP.  Nevertheless, the available evidence shows he continually displayed a lack of self-discipline and inability to conform to military rules as evidenced by his indiscipline.  Accordingly, his chain of command initiated separation action against him and he voluntarily consented to discharge under the EDP.  His separation was accomplished in compliance with applicable regulations with no evidence of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.

4.  The applicant's record of military service was marred by indiscipline or misconduct.  Based on his overall record his service does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

5.  With respect to the medical discharge, the available evidence shows he suffered a jaw injury but it is unclear if this injury was sustained in the line of duty or due to other reasons.  But, regardless of the cause of the injury, there is no evidence it warranted processing through the PDES.  According to the available evidence he received the appropriate treatment.  He continued to serve on active duty from the date he was released from the hospital (29 November 1979) to the date he was discharged from the Army (6 October 1980) coupled with the fact that he was never issued a permanent physical profile or referred to the PDES indicates he was fit for duty at the time of discharge.  Therefore, he was not considered by an MEB.  Without an MEB, there would have been no basis for referring him to a PEB.  Without a PEB, he could not have been issued a medical discharge.

6.  The Army must find that a Soldier is physically unfit to reasonably perform the duties associated with the Soldier's rank, grade or specialty and assigned an appropriate disability rating before the Soldier can be medically separated.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the PDES.  In this case the applicant failed to produce sufficient evidence to substantiate 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)                                         AR20100012775



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ABCMR Record of Proceedings (cont)                                         AR20100012775



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