IN THE CASE OF:	  

		BOARD DATE:	  20 September 2011

		DOCKET NUMBER:  AR20110002859 


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 correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she was medically retired due to injuries incurred during active military service.

2.  The applicant states:

* her discharge was improper because her command did not follow the discharge regulation
* she should have received a medical discharge because she was not medically qualified to serve
* her command gave her bad advice and abused its authority by doing so
* clemency is warranted because it is an injustice for her to continue to suffer the adverse consequences of her discharge
* she was run over by a truck while stationed at Fort Hood, TX
* medical problems impaired her ability to serve following her accident; she wanted to but she was not able to
* she was given bad advice from her commander which led to her administrative discharge
* if her command had done their job, instead of trying to cover up the accident, she would have received a medical discharge for disability
* she served her country with honor and great pride – her conduct and efficiency ratings were all excellent
* her discharge should be based on her entire service, not just once incident


3.  The applicant provides:

* a self-authored letter to the Board, subject: Supplement to DD Form 149 Requesting Change of Discharge Status, dated 30 January 2011
* Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 13 April 2011
* a self-authored letter to the VA, dated 10 April 2011
* a self-authored VA Claim Form Supplement, dated 10 November 2010
* 3 third-party statements of support from her husband and 2 former Soldiers who served with her at Fort Hood
* DA Form 3875 (Military Police Report), dated 6 February 1997 (2 copies)
* DA Form 3946 (Military Police Traffic Accident Report), dated 6 February 1997 (2 copies)
* Fort Hood (FH) MDA (unknown) Form 975 (Darnall Army Community Hospital (DAHC) Ambulance Report), dated 6 February 1997
* DAHC Registration Form, dated 6 February 1997
* DA Form 3888 (Medical Record – Nursing History and Assessment), dated 6 February 1997
* Automated Standard Form (SF) 558 (Medical Record – Emergency Care and Treatment (Patient)), dated 6 February 1997
* SF 504 (Medical Record – History – Part I), dated 6 February 1997
* Radiological Examination Report, page 2, dated 11 February 1997
* Optional Form (OF) 275 (Medical Record Report – DAHC Discharge Note), dated 11 February 1997
* Narrative Summary, dated 1 March 1997
* DAHC Record of Inpatient Treatment, dated March 1997
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 18 March 1997
* 2 color photographs: one that shows a woman lying in a hospital bed, and another that shows the same woman in the hospital bed, accompanied by 3 Soldiers and 2 individuals in civilian attire
* DA Form 4187 (Personnel Action), dated 29 October 1997
* DD Form 616 (Report of Return of Absentee), dated 8 January 1998
* memorandum, subject: Transmittal of Charges, dated 13 March 1998
* memorandum, subject: Request for Discharge in Lieu of Trial by Courts-Martial, dated 8 January 1998, with endorsements 1 through 3
* DD Form 214
* SF 180 (Request Pertaining to Military Records), dated 31 January 2011
* National Archives (NA) Form 13075 (Questionnaire About Military Service), dated 25 October 2010
* NA Form 13055 (Request for Information Needed to Reconstruct Medical Data), undated
* a letter from the National Personnel Records Center (NRPC), dated 1 April 2011

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 on 26 February 1996.  She completed training and was awarded military occupational specialty (MOS) 63H (Track Vehicle Repairer).  After completing her training she was assigned to Company B, 15th Forward Support Battalion, 1st Cavalry Division, Fort Hood, TX.

3.  On 6 February 1997, she was struck by a vehicle while crossing a road on Fort Hood, resulting in a pelvic fracture which required hospitalization.

4.  On 11 February 1997, she was discharged from the DAHC and was placed on convalescent leave for 30 days.  Her DA Form 3349 (Physical Profile) was not available for review.

5.  Her available records do not indicate she was referred to the Physical Disability Evaluation System (PDES).

6.  On 28 October 1997, she was reported by her unit as absent without leave (AWOL), and was subsequently dropped from the Army rolls on 27 November 1997.  On 5 January 1998, she surrendered to military authorities at Fort Sill, OK.

7.  On 7 January 1998, court-martial charges were preferred against her for being AWOL from on or about 28 October 1997 until her return to military control on 5 January 1998.

8.  On 8 January 1998, she consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to her.  Subsequent to receiving this legal counsel, she voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.

9.  In her request for discharge, she indicated she understood that by requesting discharge she was admitting guilt to the charge against her or to a lesser-included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  She further acknowledged she understood that if her discharge request was approved, she could be deprived of many or all Army benefits, she could be ineligible for many or all benefits administered by the Veterans Administration, and she could be deprived of her rights and benefits as a veteran under both Federal and State laws.

10.  On 20 March 1998, the separation authority approved her request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 6 April 1998, she was discharged accordingly.  Her DD Form 214 confirms she completed 1 year, 11 months, and  2 days of net active service during this period of active duty, and she had lost time from 28 October 1997 through 4 January 1998.

11.  Her available records are void of any documentation that supports her contention that her chain of command "coached her on how to get out of the Army with an administrative discharge," as she indicated in her statement.

12.  She provides numerous documents related to the injuries she sustained on  6 February 1997.  These documents show she suffered a pelvic fracture, but do not indicate she would be unable to fully recover, continue her service in her primary MOS, or require referral to a Medical Evaluation Board (MEB) 

13.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

   a. Paragraph 1-35, of the regulation in effect at the time, provided that, except in separation actions under chapter 10 (emphasis added), disposition through medical channels takes precedence over administrative separation processing.  

   b. 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.

   c. Paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

14.  Army Regulation 635-40 establishes the 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 or her office, grade, rank, or rating.  

   a. Paragraph 4-3 states that an enlisted member may not be referred for physical disability processing when action has been started that may result in an administrative separation with a characterization of service of under other than honorable conditions.  

   b. Paragraph 4-7 states that commanders of Military Treatment Facility (MTF), who are treating soldiers in an assigned, attached, or outpatient status, may initiate action to evaluate the soldier's physical ability to perform the duties of his or her office, grade, rank, or rating.

   c. Paragraph 4-8 states that when a commander believes a soldier of his or her command is unable to perform the duties of his or her office, grade, rank, or rating because of physical disability, the commander will refer the soldier to the responsible MTF for evaluation.

   d. Paragraph 4-9 states that MTF commanders with primary care responsibility will evaluate those referred to him or her and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the Soldier to an MEB.  
   e. Paragraph 4-10 states that MEBs 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.  Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

   f. Paragraph 4-17 states that PEBs evaluate all cases of physical disability equitably for the Soldier and the Army.  The PEB is not a statutory board.  Its findings and recommendations may be revised.  It is a fact-finding board that investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board; it evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; it provides a full and fair hearing for the Soldier as required by section 1214, Title 10, United States Code (10 USC 1214); and it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

   g. Paragraph 4-19 states that the PEB determines whether the soldier is physically fit or unfit to perform the duties of the Soldier's office, grade, rank, or rating; whether the disability is of a permanent nature; and whether the disability meets the criteria established by law for compensation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of her DD Form 214 to show she was honorably discharged due to medical disqualification was carefully considered; however, there is insufficient evidence to support her request.

2.  Her records indicate she was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  There is no evidence her chain of command coached her on how to get out of the Army with an administrative discharge.  

3.  Her discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The characterization of service is commensurate with her overall record of military service.

4.  With respect to a medical discharge, there is no evidence in the available records, and she failed to submit any evidence, that shows her medical injuries were severe enough to limit her ability to perform in her grade and MOS, or that required her referral to an MEB or warranted a medical retirement.  

5.  In view of the foregoing evidence, there is insufficient evidence to grant her 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 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)                                         AR20100008950



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ABCMR Record of Proceedings (cont)                                         AR20110002859



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