BOARD DATE: 28 April 2011
DOCKET NUMBER: AR20100025580
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 reconsideration of his earlier request that his honorable discharge be changed to a medical discharge.
2. The applicant states:
* he previously asked for a medical discharge and the Board brought up his disciplinary infractions
* he addressed each of these infractions as they occurred
* he would like a chance to argue his case because the information on file does not match the actual occurrences
3. The applicant addresses each infraction/disciplinary action mentioned in Docket Number AR20100009952.
4. The applicant provides no additional evidence.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100009952 on 8 September 2010.
2. His contention pertaining to his disciplinary infractions is a new argument that will be considered by the Board.
3. He enlisted in the Regular Army on 29 October 1986 for a period of 3 years. He completed training and was awarded military occupational specialty 76V (Materiel Storage and Handling Specialist). He served in Southwest Asia from 12 September 1990 to 10 April 1991.
4. His records contain multiple counseling statements for various infractions, including instances of failing to be at the appointed place of duty, failing to report, failing to repair, multiple instances of missing his driver's license, writing bad checks, failing to pay just debts, and multiple letters of indebtedness.
5. On 3 April 1989, he was arrested by the Fort Campbell, KY, Military Police for being involved in a verbal altercation and/or assault with another Soldier.
6. On 4 May 1989, he received a letter of reprimand for committing assault against another Soldier.
7. On 8 September 1989, nonjudicial punishment was imposed against him for having a female visitor in his room.
8. On or about 25 November 1991, a warrant for his arrest was issued by civilian authorities due to his continuous indebtedness and writing bad checks.
9. A bar to reenlistment was imposed against him.
10. On 25 November 1991, he was arrested by civil authorities and transported to the Christian County Jail, KY, for the civilian charge of theft by deception. He was released to military authorities on a monetary bond with a court date of 27 November 1991. He was ultimately sentenced to civil confinement.
11. On 20 February 1992, he underwent a separation physical and he was found to be qualified for separation with a physical profile of "111111."
12. On 29 April 1992, he was notified of his pending separation under chapter 14 of Army Regulation 635-200 (Personnel Separations) for misconduct for commission of a serious offense. Specifically, his immediate commander cited his indebtedness and recommended an honorable discharge.
13. On 15 June 1992, an administrative separation board convened at Fort Campbell to determine if the applicant should be separated. The administrative separation board determined that despite attempts to rehabilitate or develop the applicant as a satisfactory Soldier, further efforts were unlikely to succeed and rehabilitation was impractical. The applicant's discreditable conduct was prejudicial to good order and discipline. The board noted there was a pattern of misconduct since 1988 with no improvement and his conduct was detrimental to the unit. As such, the board recommended his discharge from the Army with an honorable character of service.
14. On 25 June 1992, the separation authority approved the administrative separation board's findings and recommendations and ordered the applicant immediately discharged. The applicant was discharged on 7 July 1992.
15. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and procedures for separating personnel for the commission of a serious offense. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.
16. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. Paragraph 4-3 states that an enlisted Soldier may not be referred for or continue disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.
17. 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 of less than 30 percent.
18. Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing and if reclassification action is warranted.
a. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):
* P - physical capacity or stamina
* U - upper extremities
* L - lower extremities
* H - hearing and ears
* E - eyes
* S - psychiatric
b. Numerical designator "1" under all factors indicates an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.
DISCUSSION AND CONCLUSIONS:
1. He contends he previously requested a medical discharge and his disciplinary infractions were brought up. The applicant's disciplinary infractions were addressed because he was discharged by reason of misconduct and he requested a change to the reason for his separation. He could have received a discharge under other than honorable conditions since he was separated under a regulatory provision that authorized a characterization of discharge of under other than honorable conditions.
2. Since he separated under a regulatory provision that authorized a characterization of under other than honorable conditions and he was found medically qualified for separation on 20 February 1992, it does not appear he was eligible for physical disability processing. Therefore, there is no basis for 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 the overall merits of this case are
insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20100009952, dated 8 September 2010.
___________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) AR20100025580
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ABCMR Record of Proceedings (cont) AR20100025580
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