IN THE CASE OF:	  

		BOARD DATE:	  2 December 2010

		DOCKET NUMBER:  AR20100015075 


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, his discharge be voided and instead he be granted retirement by reason of physical disability.

2.  The applicant states that he has been granted a 100 percent (%) disability rating percentage by the Department of Veterans Affairs (VA).  He believes that he should have been retired by reason of physical disability because all of his disabilities were service-connected and found to be unfitting. 

3.  The applicant provides:

* correspondence from the Air Force Review Boards Office
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* documents from the VA regarding his compensation
* a DA Form 294 (Application for Review by the Physical Disability Board of Review (PDBR) of the Rating Awarded accompanying a Medical Separation from the Armed Forces of the United States)

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 enlisted in the Regular Army in Chicago, IL on 6 March 1975 for a period of 4 years.  He completed his training, remained on active duty through continuous reenlistments, and attained the rank/grade of sergeant (SGT)/E-5 on 11 May 1979.  He served assignments at Fort Bragg, NC; Germany; Chicago Military Entrance Processing Station (MEPS) (1981 - 1985); Germany for
24 months; and then back to the Chicago MEPS in 1988 as a test administrator.

3.  On 4 November 1991, while still assigned to the MEPS, nonjudicial punishment (NJP) was imposed against the applicant for the wrongful use of cocaine.  His punishment consisted of a reduction to the rank/grade of specialist (SPC)/E-4 and a forfeiture of pay.  He did not appeal the punishment.

4.  On 12 November 1991, the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, paragraph 14-12c, for a positive urinalysis result for cocaine.

5.  On 18 November 1991, after consulting with counsel, the applicant requested consideration of his case by and appearance before an administrative separation board.  He elected not to submit statements in his own behalf.  However, on
16 January 1992, he submitted a request for a conditional waiver in which he agreed to voluntarily waive his appearance before an administrative separation board contingent upon his receiving a characterization of service no less favorable than a general discharge.  On the same date, the appropriate authority approved the applicant’s conditional waiver request.

6.  On 16 January 1992, the separation authority approved the applicant's discharge under Army Regulation 635-200, paragraph 14-12c for commission of a serious offense with a general discharge.

7.  Accordingly, on 28 January 1992, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c by reason of misconduct - drug abuse.  He had served 16 years, 10 months, and 24 days of total active service.


8.  On 10 March 1998, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge contending that his discharge was inequitable based on one incident of misconduct during his career.  The ADRB accepted his argument and, by majority vote, granted him an upgrade to fully honorable on 5 August 1998.

9.  A review of the applicant’s official records failed to show any indication that the applicant was unfit to perform the duties of his rank and military occupational specialty (MOS) or that he was deemed unfit for separation.  There is also no indication that he should have been processed for separation through the Physical Disability Evaluation System (PDES).

10.  The documents submitted by the applicant indicate that he began receiving disability compensation from the VA on 1 December 2008.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states, in pertinent part, that 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.  This regulation also provides, in pertinent part, that 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.  That regulation also provides the provisions for Soldiers to appeal the decisions of the various boards and agencies involved in determining a Soldier’s disability ratings.  

13.  Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military 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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

14.  There is a difference between the VA and the Army disability systems.  The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the Physical Evaluation Board (PEB) hearing.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

15.  The VA determines the effective date of an approved entitlement based on the date a claim was received or, if filed within 1 year of separation from the military, entitlement will be from the day following separation from the military.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was properly separated under the provisions of Army Regulation 635-200, chapter 14, for misconduct due to drug abuse with no indication of any violations of any of his rights.

2.  His contention that he should have been retired by reason of physical disability instead of being discharged has been noted and found to lack merit.  The applicant has failed to show through the evidence submitted with his application and the evidence of record, sufficient evidence to show that he was unfit for separation at the time of his discharge or that he should have been processed through the PDES.

3.  The fact that the VA, in its discretion, has awarded the applicant a disability rating 16 years after his discharge is a prerogative exercised within the policies of that agency.  It does not, in itself, establish any entitlement to disability compensation or medical retirement from the Army.  

4.  Even if the applicant had not been discharged for misconduct, there is no evidence to suggest that he would have been processed for a disability separation or retirement under the PDES had he remained on active duty.

5.  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)                                         AR20100015075



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ABCMR Record of Proceedings (cont)                                         AR20100015075



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