IN THE CASE OF:	  

		BOARD DATE:  9 February 2012

		DOCKET NUMBER:  AR20110014363 


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 her discharge be corrected to honorable due to physical disability.

2.  The applicant states, in effect, the general under honorable conditions discharge she received was unjust because she had an active duty, back related, medical disability.  Further, she had many personal issues with her company commander.  She currently has a 90 percent disability rating from the Department of Veterans Affairs (VA).

3.  The applicant provides no additional 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.  The applicant enlisted in the United States Army Reserve (USAR) on 
6 September 1990 and she was ordered to initial active duty for training on
22 September 1991.

3.  She was counseled on four separate occasions reference her conduct.  Her misconduct included being absent without leave (AWOL), failing to report, failure to follow a direct order, and violating restriction.

4.  She accepted nonjudicial punishment (NJP) on 27 June 1991 for being AWOL (4 days); and on 12 August 1991 for breaking restriction and failing to maintain sufficient funds to pay a check.

5.  On 3 September 1991, she was notified that she was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  She acknowledged receipt of the notification.  After consulting with counsel, she waived her right to submit a statement in her behalf.

6.  The appropriate authority approved the recommendation for discharge on 11 September 1991 and directed the issuance of a General Discharge Certificate.

7.  On 19 September 1991, she was discharged under honorable conditions, under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  She received a General Discharge Certificate.

8.  Her medical records are not available for review and there is no indication that she incurred an injury or illness while serving on active duty.

9.  The Army Discharge Review Board denied her application for an upgrade of her discharge on 2 May 1998.

10.  Army Regulation 635-200 (Enlisted Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel.

	a.  Chapter 13 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.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.
   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.

11.  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.

12.  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 applicant requests the character and reason for her discharge be corrected to honorable due to physical disability.

2.  The applicant's medical records are not available and there is no evidence contained in the record or provided by the applicant to show she sustained a back injury while on active duty.  Lacking evidence to the contrary, her administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize her rights.

3.  She received four negative counseling and accepted NJP on two occasions within a six month period.  Accordingly, her chain of command initiated separation action against her.


4.  Her administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized her rights.  The evidence of record shows she consulted with counsel and was advised of the basis for the separation action.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of her discharge is commensurate with her overall record of military service.

5.  Based on her record of indiscipline, including being AWOL, her service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, she is not entitled to the requested relief.

6.  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.

7.  In view of the foregoing, her 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)                                         AR20110014363





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ABCMR Record of Proceedings (cont)                                         AR20110014363



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