IN THE CASE OF:	  

		BOARD DATE:	  2 June 2011

		DOCKET NUMBER:  AR20100026024 


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 that his under other than honorable conditions discharge be changed to show he was discharged due to a physical disability. 

2.  He states, in effect, he suffered an injustice when he was not transferred to a warmer climate as his permanent profile advised.  He was kept in Alaska 
23 months after sustaining a severe cold weather injury (CWI).  He was originally going to be discharged in February 1988, under the provisions of chapter 9 of Army Regulation 635-200 (Enlisted Personnel) for drug/alcohol abuse.

3.  He contends he asked for a transfer several times and he was given no assistance.  He ended up committing a crime and he was discharged 8 months later. 

4.  He provided:

* an excerpt of his military medical records
* his DA Form 2-1 (Personnel Qualification Record – Part II)
* his DD Form 214

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 1 September 1987.  After the completion of training, he served in military occupational specialty (MOS) 76X (Subsistence Supply Specialist).  He was assigned to Alaska.

3.  A Standard Form (SF) 513 (Medical Record – Consult Sheet) shows he was admitted to Bassett Army Community Hospital on 13 February 1988, at 0300 hours for a drug/alcohol screening.  He tested positive for tetrahydrocannabinol (THC), cocaine, and amphetamines.  He was also treated for a CWI to his hands and ears.  The form also shows he was recommended for screening by the Army Drug Abuse Prevention and Control Program (ADAPCP).

4.  An SF 502 (Narrative Summary) shows he was discharged from the hospital on 23 February 1988 and was diagnosed with a CWI that was listed as second degree frostbite to bilateral hands and ears.  

5.  A DA Form 3349 (Physical Profile) shows the following entries:

* Item 1 (Medical Condition) – Post Frostbite of the hands/feet:  Pernio
* Item 2 (PULHES) –133111
* Item 3 (Assignment limitations are as follows) – Consideration to assignment to a warmer climate (no temperature less than 32 degrees for more than 15 minutes per hour; arctic gear temperature no less than 
40 degrees), no exposure to extreme cold 

6.  An SF 600 (Chronological Record of Medical Care) shows he was scheduled to appear before an MOS Medical Retention Board (MMRB) on 8 February 1989; however, he failed to appear. 

7.  The complete facts and circumstances surrounding his separation action are not in the available record.  However, a document shows that on 27 November 1989, his unit commander recommended separation action under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for patterns of misconduct and abuse of illegal drugs.  The unit commander based his 


recommendation on the applicant’s pattern of misconduct which was discreditable involvement with civil authorities and commission of a serious offense – abuse of illegal drugs.  

8.  On 24 November 1989, the intermediate commander strongly concurred with the unit commander’s recommendation and he recommended the applicant be issued an under other than honorable conditions discharge. 

9.  On 9 January 1990, the separation authority approved the recommendation for discharge and directed he be issued an under other than honorable conditions discharge under the provisions of paragraph 14-12c of Army Regulation 635-200.

10.  There is no indication in the available record to show he was being considered for separation under the provisions of chapter 9 of Army Regulation 635-200 for drug abuse and rehabilitative failure.

11.  His DD Form 214 shows he was discharged on 17 January 1990 under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct-commission of a serious offense.  He completed 2 years, 3 months, and 20 days of net active service and he had 27 days of lost time due to being in civil confinement and absent without leave (AWOL).  Item 24 (Character of Service) confirms his discharge was under other than honorable conditions. 

12.  He applied to the Army Discharge Review Board (ADRB) in 1997 for an upgrade of his discharge.  

13.  The ADRB determined the reason for discharge was both proper and equitable and unanimously voted to deny relief. 

14.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) states 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.  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, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  Numerical designator "4" indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator "4" does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

15.  Army Regulation 600-60 (Physical Performance Evaluation System), paragraph 2-2 states that Soldiers must be referred to an MMRB when issued a permanent DA Form 3349 with a numerical designator of 3 or 4 in one of the profile factors unless direct referral to a Physical Evaluation Board (PEB) is required.  Paragraph 2-3f(6) states that an enlisted Soldier who is within 90 days of his or her expiration of term of service and does not intend to reenlist or extend his or her enlistment will not be referred to an MMRB.

16.  Army Regulation 635-40 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 purpose of his employment on active duty.  It states that although the ability of a Soldier to reasonably perform his or her duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion will not serve as the sole basis for a finding of unfitness.

17.  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, commission of a serious offense, and convictions by civil authorities.  Paragraph 14-12c(2) provides for separation for commission of a serious offense such as abuse of illegal drugs.  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.

DISCUSSION AND CONCLUSIONS:

1.  His contention that his discharge should be changed to show he was discharged due to a physical disability as a result of a CWI was carefully considered; however, it was found to be without merit.  

2.  It is acknowledged he had a CWI while assigned to Alaska and he was given a permanent profile for those injuries.  It does not appear that his injuries prevented him from performing his duties.  

3.  The available evidence shows he was scheduled to appear before an MMRB for further determination of his medical condition; however, he failed to appear.  In doing so, he inadvertently declined any possibility for referral to a PEB.  Now, more than 21 years after the occurrence of his injuries, it is not reasonably feasible to make a valid diagnosis of medical unfitness. 

4.  His separation was based upon substandard performance as a Soldier which included drug abuse and civil confinement.  

5.  Absent evidence to the contrary, it is presumed that all requirements of law and regulations were met and his rights were fully protected throughout the separation process.  Therefore, he is not entitled to 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)                                         AR20100026024



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ABCMR Record of Proceedings (cont)                                         AR20100026024



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