IN THE CASE OF:	  

		BOARD DATE:	    4 January 2011

		DOCKET NUMBER:  AR20100014984 


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, in effect, that his general discharge under honorable conditions be changed to a medical discharge due to permanent physical disability.

2.  He states he was discharged for marijuana use.  He attests he had a right shoulder injury and, albeit with extremely bad judgment, he used the marijuana entirely for medicinal purposes to ease the pain caused by the injury.  He contends he was never provided a medical evaluation board (MEB) or a legitimate discharge physical.  He concludes he has been chronically unemployed for over 20 years, having over 60 jobs, and attests his shoulder pain has caused him to be unable to maintain employment.

3.  He provides no documentary evidence in support of his application.

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.  His record shows he enlisted in the Regular Army on 28 December 1984.  Upon completion of initial entry training, he was awarded military occupational specialty (MOS) 13F (Fire Support Specialist).  The highest rank/grade he attained while serving on active duty was private first class/E-3.  However, at the time of separation he held the rank/grade of private/E-1.

3.  His record reveals a disciplinary history that includes acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on two occasions.

* on 30 January 1986, for violating Article 112a by wrongfully using marijuana
* on 3 March 1986, for violating Article 86 by failing to go to his appointed place of duty

4.  His record contains documents completed when he underwent a preseparation medical examination on 7 February 1986:

* Standard Form 88 (Report of Medical Examination) shows the examining physician determined he had no significant defects or diagnoses and was qualified for separation with no physical limitations
* Standard Form 93 (Report of Medical History) shows he indicated he had a painful or "trick" shoulder and recurrent back pain due to a pinched nerve and had been on a physical limitation profile since February 1985

5.  On 28 March 1986, the applicant's unit commander notified him he was initiating action which could result in his separation from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c(1), for commission of a serious offense.

6.  The unit commander recommended that he be issued a general discharge under honorable conditions.  The unit commander also informed him that the least favorable characterization of service that he could receive was a general discharge.  The unit commander continued by advising him of his rights to consult with legal counsel, to submit written statements in his own behalf, to obtain copies of the documents that would be sent to the separation authority supporting the proposed separation action, to a hearing before an administrative board if he had 6 or more years of active and Reserve military service at the time of separation, to waive these rights in writing, and to withdraw his waiver of any of these rights at any time prior to the date the discharge authority directed or approved his separation.  The applicant acknowledged receipt of this notification on 28 March 1986.

7.  On 1 April 1986, he consulted with legal counsel and after being advised of the basis for the contemplated separation action, its effects, and the rights available to him, he acknowledged he understood that if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life.

8.  On 4 April 1986, the applicant's unit commander recommended that he be separated from the Army under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense.  The commander cited the discovery of the applicant's second drug-related offense as the specific reason for this action.  The commander also stated the applicant was counseled about subsequent behavior which demonstrated a lack of acceptance of rehabilitative measures.  The commander concluded the applicant had demonstrated through repeated misconduct after formal counseling that any other disposition would be inappropriate.

9.  On 10 April 1986, the separation authority approved the unit commander's request and directed that the applicant be separated under the provisions of Army Regulation 635-200, paragraph 14-12c, with a General Discharge Certificate.

10.  On 17 April 1986, he was discharged accordingly.  Block 24 (Character of Service) of the DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was issued a general discharge and his service was characterized as "under honorable conditions."  Block 25 (Separation Authority) shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c.  Block 26 (Separation Code) of this form shows he was assigned a separation program designator code of "JKK."  Block 28 (Narrative Reason for Separation) shows "misconduct - drug abuse."

11.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

13.  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.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states that 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

14.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command is responsible for operating the PDES and executes Secretary of the Army decision-making authority as directed by Congress in Title 10, U.S. Code, chapter 61, and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40.  Soldiers enter the PDES in four ways:

	a.  an MEB.  A Soldier is referred to an MEB when a Soldier has received maximum benefit of medical treatment for a condition that may render the Soldier unfit for further military service.  The medical treatment facility conducts an MEB to determine whether the Soldier meets the medical retention standards of Army Regulation 40-501, chapter 3.  If the Soldier does not meet medical retention standards, he or she is referred to a physical evaluation board (PEB) to determine physical fitness under the policies and procedures of Army Regulation 635-40.

	b.  an MOS/Medical Retention Board (MMRB).  The MMRB is an administrative screening board the chain of command uses to evaluate the ability of Soldiers with permanent 3 or 4 medical profiles.  The MMRB determines whether a Soldier can physically perform in a worldwide field environment in their primary military occupational specialty.  Referral to an MEB/PEB is one of the actions the MMRB convening authority may direct;

	c.  a fitness for duty medical examination.  When a commander believes a Soldier is unable to perform his MOS-related duties due to a medical condition, the commander may refer the Soldier to the medical treatment facility for evaluation.  If evaluation results in a MEB, and the MEB determines the Soldier does not meet medical retention standards, the Soldier is referred to a PEB; and

	d.  a Headquarters Department of the Army action.  The Commander, U.S. Army Human Resources Command, upon recommendation of the Surgeon General, may refer a Soldier to the responsible medical treatment facility for medical evaluation as described above.  The U.S. Army Human Resources Command also directs referral to a PEB when it disapproves the MMRB's recommendation to reclassify a Soldier into a different MOS.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected by changing his general discharge under honorable conditions to a medical discharge was carefully considered and determined to be without merit.

2.  There is no evidence in the available records and the applicant failed to provide any evidence which shows he had an unfitting medical condition or should have been referred to the Army PDES for consideration by either an MEB or a PEB prior to his discharge.

3.  Although he indicated he had a painful or "trick" shoulder in his report of medical history, it does not, in and of itself, establish physical unfitness for Department of the Army purposes.

4.  The record shows he had multiple disciplinary infractions.  In spite of his indiscipline, his chain of command was willing to allow him to remain on active duty and continue to serve.  The available evidence shows he was not responsive to the rehabilitative efforts of his command.

5.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

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 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)                                         AR20100014984



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ABCMR Record of Proceedings (cont)                                         AR20100014984



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