IN THE CASE OF: 

		BOARD DATE: 20 December 2011

		DOCKET NUMBER:  AR20110013721 


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 his military records to show he was medically retired.

2. The applicant states he should have been "boarded out."

3.  The applicant did not provide any additional documentation.

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 21 July 1987.  He completed training was awarded military occupational specialty 76C (Equipment Records and Parts Specialist).

3.  On 21 June 1988, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty.

4.  His record contains DA Forms 4856 (General Counseling Form) dated as follows:

	a.  18 May 1988, for failure to obey a lawful order,

	b.  20 May 1988, for incompetence – failure to satisfactorily perform assigned tasks in a timely manner,

	c.  21 May 1988, for his daily duty performance, failure to pass his physical fitness (PT) test, and failure to maintain sufficient funds in his checking account,

	d.  21 May 1988, for issuing five dishonored checks.

	e.  24 May 1988, for unsatisfactory performance of duty,
	
	f.  5 June 1988, for not wearing the proper uniform to formation,

	g.  7 June 1988, for not making the formation at 1315 hours that day; and 

	h.  7 June 1988, for being relieved of his duties.

5.  On 14 June 1988, the applicant was notified by his commander that he was being considered for separation under the provisions of Army Regulation 
635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unsatisfactory performance.  The commander stated the action was based on the applicant’s continued unsatisfactory performance of his duties.  He further recommended waiver of rehabilitation transfer. 

6.  The applicant consulted with counsel.  He acknowledged his rights and elected to not submit a statement in his own behalf.  

7.  The appropriate authority approved the recommendation and directed the issuance of a General Discharge Certificate.

8.  He was discharged on 12 July 1988, with a general discharge.  He had completed 11 months and 22 days of total active service. 
 
9.  The applicant's records contain a Standard Form (SF) 88 (Report of Medical Examination) dated 22 June 1988.  There is no indication he was experiencing any medical issues.   His SF 93 (Report of Medical History) dated 22 June 1988, shows in item

8 (Statement of Examinee's Present Health and Medications Currently Used) the entries:  "I am in Good Health.  I am on no medications."

10.  The applicant's service medical records were not available for review.

11.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  

12.  Army Regulation 635-40, paragraph 2-2b(1) then in effect, provided that when a member was being separated by reasons other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she was scheduled for separation or retirement created a presumption that he or she was fit.  This presumption could be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time 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.

13.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  It states in paragraph 2-9, "The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence."

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  There is no available evidence showing the applicant had any medical condition, incurred while entitled to receive basic pay, which was so severe as to render him medically unfit for retention on active duty.  
3.  There is no apparent error or injustice in this case.

4.  In view of the above, the applicant's request should be denied. 

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)                                         AR20100012218



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ABCMR Record of Proceedings (cont)                                         AR20110013721



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