BOARD DATE:	  19 January 2012

		DOCKET NUMBER:  AR20110013473 


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 his general under honorable conditions discharge be changed to a medical discharge.  He further requests correction of his record to show he held the rank/pay grade of specialist/E-4 at the time of his discharge. 

2.  The applicant states, in effect, on 8 July 1999, he was informed his blood pressure was 151/95.  The treating physician requested the applicant be evaluated for hypertension.  The applicant believes the command discharged him under other reasons once they were aware of his condition thereby avoiding payment of disability benefits.  He further states, there were several instances of high blood pressure readings and hypertension in his medical records and he now has high blood pressure. 

3.  The applicant provides:

* a self-authored statement
* DD Form 214 (Certificate of Release or Discharge From Active Duty)
* FB Form 128 (Statement of Option For Medical Examination For Separation)
* SF 513 (Consultation Sheet)
* three copies of SF 558 (Medical Record – Emergency Care and Treatment)




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 12 February 1997.  Upon completion of initial entry training, he was awarded military occupational specialty 95B (Military Police).  

3.  The applicant’s record contains numerous counseling for disobeying lawful orders on several occasions, uttering worthless checks, being absent without leave, failing to report to his designated place of duty, negligently discharging a firearm, and failing to register a weapon.

4.  Records show at the command’s request, the applicant underwent a mental status evaluation on 18 June 1999 due to the applicant being stressed out over the separation and possible divorce of his wife.  The findings of the examination noted that the applicant was mentally responsible and was mentally cleared for any administrative or judicial action deemed appropriate by the command. 

5.  The evidence shows the applicant underwent a separation medical evaluation on 12 July 1999.  In Item 7 (Statement of Patient’s Present Health and Medications Currently Used) a (Present Health) of the applicant’s SF 93 (Report of Medical History) the applicant stated “I am in good health, I am not taking any medications.”  In item 10 (Past/Current Medical History) of this form he indicated he had never suffered from high or low blood pressure.  He further authenticated this form with his signature.  In addition, the Report of Medical Examination completed by the attending physician indicates the applicant was qualified for separation.  This form is authenticated with the physician’s signature.   

6.  The evidence of record shows that on 30 November 1999, the unit commander notified the applicant of initiation of separation under the provisions of Chapter 14, paragraph 14-12b, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) by reason of patterns of misconduct.  His promotion history is shown as follows:

* private/E-1, 12 February 1997
* promoted to private (PV2)/E-2, 12 April 1997
* promoted to PFC/E-3, 1 May 1998
* demoted to PV2/E-2, 9 November 1999

7.  On 2 December 1999, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, the possible effects of a discharge, and of the rights available to him.  

8.  The separation authority approved the applicant's discharge under Army Regulation 635-200, chapter 14, and directed that he be issued a general under  honorable conditions discharge.  On 17 December 1999, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he was separated for misconduct.  He completed a total of 2 years, 10 months, and        6 days of creditable active military service. 

9.  The applicant applied to the Army Discharge Review Board for upgrade of his discharge.  On 6 April 2011, he was notified he was properly and equitably discharged and his request to change the character of his discharge was denied.  

10.  The applicant provides three pages of medical documentation which contain blood pressure readings and a consultation sheet, dated 8 July 1999, which shows a physician requested an evaluation for hypertension.

11.  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.  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.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

12.  Army Regulation 635-200, 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.

13.  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 or her office, grade, rank, or rating.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

14.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command is responsible for operating the PDES and executes Secretary of the Army decision-making authority as directed by Congress in Title 10, U.S. Code, chapter 61, and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40.  Soldiers enter the PDES in four ways:

	a.  an MOS/Medical Retention Board (MMRB).  The MMRB is an administrative screening board the chain of command uses to evaluate the ability of Soldiers with permanent 3 or 4 medical profiles.  The MMRB determines whether a Soldier can physically perform in a worldwide field environment in their primary military occupational specialty.  Referral to an MEB/PEB is one of the actions the MMRB convening authority may direct;
	
   b.  a fitness for duty medical examination.  When a commander believes a Soldier is unable to perform his MOS-related duties due to a medical condition, the commander may refer the Soldier to the medical treatment facility for evaluation.  If evaluation results in a MEB, and the MEB determines the Soldier does not meet medical retention standards, the Soldier is referred to a PEB; 
   
   c.  an MEB.  A Soldier is referred to an MEB when a Soldier has received maximum benefit of medical treatment for a condition that may render the Soldier unfit for further military service.  The medical treatment facility conducts an MEB to determine whether the Soldier meets the medical retention standards of Army Regulation 40-501, chapter 3.  If the Soldier does not meet medical retention standards, he or she is referred to a physical evaluation board (PEB) to determine physical fitness under the policies and procedures of Army Regulation 635-40; and

	d.  a Headquarters Department of the Army action.  The Commander, U.S. Army Human Resources Command, upon recommendation of the Surgeon General, may refer a Soldier to the responsible medical treatment facility for medical evaluation as described above.  The U.S. Army Human Resources Command also directs referral to a PEB when it disapproves the MMRB's recommendation to reclassify a Soldier into a different MOS.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his general discharge should be changed to an honorable or medical discharge and that his record should be corrected to show he held the rank/pay grade of SPC/E-4 at the time of his discharge were carefully considered and determined to be without merit.

2.  There is no evidence in the available records and the applicant failed to provide any evidence which shows he had an unfitting medical condition or should have been referred to the Army PDES for consideration by either an MEB or a PEB prior to his discharge.

3.  Although he provides copies of treatment records showing blood pressure readings, it does not, in and of itself, establish physical unfitness for Department of the Army purposes.  

4.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.  Based on his record of indiscipline, the applicant's service clearly did not meet the standard of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to relief in this case.

5.  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.  However, he held the rank/grade of private (PV2)/E-2 at the time of separation.  He was reduced to PV2/E-2 and 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)                                         AR20110013473



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ABCMR Record of Proceedings (cont)                                         AR20110013473



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