IN THE CASE OF:	  

		BOARD DATE:	  31 January 2012

		DOCKET NUMBER:  AR20110014951 


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 records to show he was medically discharged vice being discharged under the expeditious discharge program for failure to maintain acceptable standards.

2.  The applicant states:

* His doctor at Fort Carson, CO, told him and his chain of command that he would receive a medical discharge
* His company commander was on his case because he (the applicant) had to go on sick call all the time due to an auto accident he had in 1999
since his arrival to the unit

3.  The applicant provides a letter to his Member of Congress.

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's records show he enlisted in the Regular Army for a period of 3 years on 20 September 1978.  He completed the training requirements and he was awarded military occupational specialty 67V (Observation/Scout Helicopter Repairman).  He was assigned to Company F, 704th Maintenance Battalion.

3.  His records also show he was awarded the Aircraft Crewman Badge and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  His records reveal a history of negative counseling and/or witness statements by members of his chain of command for various infractions including:

* being disrespectful toward a sergeant
* multiple instances of disrespecting other noncommissioned officers (NCO)
* being belligerent and disobeying orders
* lack of motivation and discipline
* poor attitude toward the Army and his job
* constant need for supervision
* performing the very minimum expected of a Soldier
* stating he was going to physically harm a sergeant
* threatening a specialist and two other sergeant
* threatening to do bodily harm "in any way, shape, or form'

5.  On 9 July 1979, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for twice willfully disobeying orders form a superior NCO and being disrespectful in language toward a superior NCO.  He elected not to appeal.

6.  On 30 August 1979, the applicant's immediate commander advised him of his intent to initiate separation action against him under the provisions of paragraph 5-31 of Army Regulation 635-200, under the Expeditious Discharge Program (EDP).   The immediate commander recommended a General Discharge Certificate and stated that:

* the applicant's manner of performance had been marginal and he required constant supervision; he had not shown the motivation or desire to accomplish even minimal job tasks
* his continued service in the Army would bring discredit to the Army and him; he failed to respond to counseling by members of his chain of command on numerous occasions
* his chain of command felt he could be of no further value to the unit or the Army

7.  On 30 August 1979, the applicant acknowledged notification of the proposed separation action.  He subsequently consulted with legal counsel.  He acknowledged that:

* he had been advised of the basis for the contemplated separation action under the provisions of paragraph 5-31, Army Regulation 635-200, Personnel Separations
* he had been advised of the effect on future enlistment in the Army, the possible effects of a general discharge and of the procedures and rights that were available to him
* he voluntarily consented to this separation action and declined to make a statement in his own behalf
* he further acknowledged he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life 

8.  His immediate commander initiated separation action against him under the expeditious discharge program and his intermediate commander recommended approval.  

9.  Consistent with the chain of command's recommendations, the separation authority waived further rehabilitation requirements and approved the applicant's discharge under the provisions of Army Regulations 635-200, paragraph 5-31, and directed that he be issued a general discharge certificate.  On 19 September 1979, the applicant was discharged accordingly 

10.  His DD Form 214 shows he was discharged under the provisions of Army Regulations 635-200, paragraph 5-31, EDP, due to failure to maintain acceptable standards for retention with a general discharge.  He had completed a total of 
1 year of creditable active military.  

11.  Also on 19 September 1979, per his request, the applicant was issued a memorandum advising him that:

* the reason for his separation was his failure to maintain acceptable standards
* the regulator authority for his separation was paragraph 5-31 of Army Regulation 635-200
* he was ineligible to reenlist without a waiver

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

13.  His service medical records are not available for review with this case.  Additionally:

* there is no indication in the available service records that he suffered an injury or an illness that rendered him unable to reasonably perform the duties of his grade or military specialty
* there is no record of a physical profile of a permanent or a temporary nature
* there is no indication he was diagnosed with a condition that warranted processing through the Physical Disability Evaluation System (PDES)

14.  He submitted a letter to his Member of Congress wherein he stated that:

* he was involved in an auto accident that injured his head, skull, neck, and lower spine; he stayed in the hospital for 3 days
* the military doctor later told him he had degenerative disc disease and he also suffered from migraines
* his chain of command thought he was going on sic call too many times and penalized him for that
* the doctor told him he would get a medical discharge but his battalion commander felt he was costing the Army too much money

15.  Army Regulation 635-200, in effect at the time, set for the basic authority for the separation of enlisted personnel.  The pertinent paragraph in chapter 5 provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential may be discharged under the EDP.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge.  Issuance of an honorable discharge was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade and general aptitude.  A general discharge is a separation from the Army under honorable conditions if an individual's military record was not sufficiently meritorious to warrant an honorable discharge.

16.  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. 

17.  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.  It provides for medical evaluation boards, which 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 (Standards of Medical Fitness).

18.  Army Regulation 635-40 states 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.

19.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be upgraded or changed to a medical discharge was carefully considered but was found to lack merit.  

2.  The available evidence shows the applicant continually displayed a lack of self-discipline and inability to conform to military rules.  Accordingly, his chain of command initiated separation action against him and he voluntarily consented to discharge under the expeditious discharge program. 

3.  His separation was accomplished in compliance with applicable regulations with no evidence of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.  Furthermore, not only did he consent to this discharge, he was advised in writing of the reason and the authority for his discharge. 

4.  With respect to the medical discharge:

	a.  there is no evidence in his records and he provided none to show he suffered an illness or an injury that rendered him unable to reasonably perform the duties required of his grade and/or military specialty.  He appears to have this common misconception that if he was injured or gotten sick, he would be automatically entitled to a medical discharge.

	b.  the Army must find that a Soldier is physically unfit to reasonably perform the duties associated with the Soldier's rank, grade or specialty and assigned an appropriate disability rating before the Soldier can be medically separated.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the PDES.  In this case the applicant failed to produce any evidence to substantiate 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 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)                                         AR20110014951



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ABCMR Record of Proceedings (cont)                                         AR20110014951



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