IN THE CASE OF:	  

		BOARD DATE:	  6 September 2011

		DOCKET NUMBER:  AR20110002275 


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 the character and reason for his 1993 discharge be changed to honorable due to physical disability.

2.  The applicant states he had recently returned from Somalia where he had been awarded the Purple Heart.  He was discharged for unsatisfactory performance, but the Department of Veterans Affairs (VA) has determined he was suffering from post-traumatic stress disorder (PTSD) and depression.

3.  The applicant provides copies of letters and documents to and from a U.S. Senator and his staff, his DD Form 214 (Certificate of Release or Discharge from Active Duty), a DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States), and VA medical records.

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.  On 2 July 1992, the applicant enlisted in the Regular Army in pay grade E-2.  He completed basic and advanced individual training as a heavy vehicle driver and reported to the 10th Transportation Company at Fort Jackson, South Carolina, on 29 October 1992.

3.  He received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on 30 November 1992 for assault by fighting with another Soldier.

4.  On 18 February 1993, the applicant was reprimanded by the commanding general for being apprehended by civilian authorities for drunk driving on 1 January 1993.  The applicant had pled guilty to drunk driving.

5.  On 24 February 1993, the applicant was determined to have exceeded the maximum allowable body fat standards and was counseled that failure to make satisfactory progress to achieve body fat standards could result in separation from the service.

6.  He was counseled for missing formation on 9 November 1992; 1, 5, and 25 February 1993; and 2, 16, and 18 March 1993.  He was cautioned that such behavior could lead to being barred from reenlistment or to his discharge.

7.  The applicant deployed to Somalia from 27 May to 17 September 1993.  He had been awarded the Purple Heart.

8.  On 23 September 1993, the applicant was informed that the company commander was initiating elimination processing because he failed to demonstrate satisfactory progress in the weight control program within 6 months.

9.  The company commander recommended separation with a general discharge due to unsatisfactory performance by failing the weight control program, repeatedly missing formations, and driving under the influence of alcohol.

10.  The applicant consulted with legal counsel who advised him of his rights and also of the disadvantages of a less-than-fully-honorable discharge, including that he could expect to encounter substantial prejudice in civilian life.

11.  The applicant waived a separation physical examination.  A required mental status evaluation on 13 October 1993 shows his behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content was normal, and his memory was good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.

12.  The appropriate authority approved the separation and directed that a general discharge be issued.  On 28 October 1993, the applicant was discharged under honorable conditions.  He completed 1 year, 3 months, and 27 days of creditable service.

13.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge during its 15-year statute of limitations.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Chapter 13 sets forth the policy and procedures for separating individuals for unsatisfactory performance and provides 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.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition occurring immediately prior to or coincident with separation rendered the member unfit.

16.  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.



DISCUSSION AND CONCLUSIONS:

1.  The medical evidence of record indicates the applicant was medically fit for retention at the time of his separation.  He has submitted no probative medical evidence to the contrary.

2.  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.  However, in accordance with its own policies and regulations, it 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.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The duty performance (drunk driving, assault, failing the weight control program) that led to his discharge started well before he arrived in Somalia.

4.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

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 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)                                         AR20110002275



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ABCMR Record of Proceedings (cont)                                         AR20110002275



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