IN THE CASE OF:
BOARD DATE: 28 July 2011
DOCKET NUMBER: AR20110001810
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, correction of his records to show he was medically discharged by reason of physical disability instead of discharged for unsatisfactory performance.
2. The applicant states he has reason to believe he was discharged with a general character of service. He had spinal problems throughout his military career which resulted in several other problems. His battalion should have given him a medical discharge.
3. The applicant did not provide any evidence.
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. Having had prior service in the Army National Guard, the applicant's records show he enlisted in the Regular Army for a period of 4 years on 29 April 1987 and held military occupational specialty 11B (Infantryman).
3. He served in Alaska from 22 August 1987 to on or about 21 August 1988. The highest rank/grade he attained was private first class/E-3. He was awarded the Army Service Ribbon and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).
4. His records contain a history of counseling statements by members of his chain of command for various infractions including multiple instances of being intoxicated while on duty, missing morning formation, failure to report, failing to go at the time prescribed to his appointed place of duty, and substandard performance.
5. On 22 January 1988, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for twice failing to go at the time prescribed to his appointed place of duty.
6. On 24 March 1988, he was investigated by the U.S. Army Criminal Investigation Command, Fort Richardson, AK, for the wrongful possession and/or use of cocaine and marijuana.
7. On 11 April 1988, he accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully using cocaine.
8. On 16 August 1988, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his unsatisfactory duty performance, excessive NJP, apathetic and negative attitude, and unprofessional conduct. The bar was ultimately approved by the approval authority.
9. His records reveal two more instances of accepting NJP under the provisions of Article 15 of the UCMJ as follows:
* on 17 August 1988, for being drunk while on duty
* on 18 August 1988, for twice being incapacitated for the performance of his duties due to indulgence in liquor or drugs and twice failing to go at the time prescribed to his appointed place of duty
10. On 17 August 1988, his immediate commander notified him of his intent to initiate separation action against him under the provisions of chapter 13 of Army Regulation 600-200 (Personnel Separations) by reason of unsatisfactory performance. The immediate commander recommended an under honorable conditions (general) discharge.
11. On 17 August 1988, the applicant acknowledged receipt of the letter of notification of separation action in accordance with chapter 13 of Army Regulation 635-200. He consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effects of a waiver of his rights. He further indicated that he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.
12. On 18 August 1988, his immediate commander initiated a recommendation for separation under the provisions of chapter 13 of Army Regulation 635-200 by reason of unsatisfactory performance. The immediate commander cited the applicant's offenses and remarked that the applicant was not responsive to the corrections of his superiors. Transferring him out of the unit was not expected to correct his behavior.
13. On 19 August 1988, consistent with the chain of command's recommendations, the separation authority approved the applicant's discharge from the Army under the provisions of chapter 13 of Army Regulation 635-200 by reason of unsatisfactory performance and directed his service be characterized as under honorable conditions (general). On 24 August 1988, the applicant was accordingly discharged.
14. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged for unsatisfactory performance in accordance with chapter 13 of Army Regulation 635-200 with a character of service as under honorable conditions (general). This form also shows he completed 1 year, 3 months, and 26 days of creditable active military service during the period under review.
15. The applicant's service medical records are not available for review with this case. However, the available medical records do not show he:
* suffered from an illness or an injury that warranted his entry into the physical disability evaluation system (PDES)
* was issued a temporary or a permanent profile
* was unable to perform the duties of his grade and specialty because of a medical reason
* was referred by appropriate medical authorities for disability processing
16. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. A general or honorable discharge was considered appropriate.
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 office, grade, rank, or rating. It provides for medical evaluation boards, 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).
18. Chapter 4 of the same regulation contains guidance on processing through the PDES, which includes the convening of a medical evaluation board (MEB) to document a Soldier's medical status and duty limitations insofar as duty is affected by the soldier's status. If the MEB determines a Soldier does not meet retention standards, the case will be referred to a physical evaluation board.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends his general discharge for unsatisfactory performance should be changed to a medical discharge.
2. The evidence of records shows the applicant's duty performance was tarnished by multiple instances of NJP involving drugs or alcohol as well as non-response to counseling by members of his chain of command. Accordingly, his chain of command initiated separation action against him. His separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights. The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with his overall record of military service.
3. There is no evidence in the available records and the applicant failed to submit any evidence that shows he suffered from a medical condition that limited his ability to perform in his grade and MOS or that would have warranted entry into the PDES and/or disability processing.
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) AR20110001810
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