IN THE CASE OF:

		BOARD DATE: 24 May 2012

		DOCKET NUMBER:  AR20110023233 


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 discharge be changed to a medical discharge.

2.  The applicant states he had a muscle disorder that went undiagnosed.  The disorder has been discovered and his military records and discharge status should be corrected.  

	a.  During basic training he was hospitalized for a severe infection in his legs.  
He was out of commission for 2 weeks and the cause of the infection was never found; however, that infection caused unlimited problems for him from then on.

	b.  He has had leg pain while running for his entire life.  The military dismissed his difficulties as laziness and failing to meet their requirements and unsatisfactory performance.

	c.  In 2010 he suffered a serious hamstring tear to his right thigh.  He was forced to seek a specialist for physical therapy and it was at that time he learned about the condition in his calves.

	d.  He recently applied for a civil service job with his local police department.  He was told he was uninsurable due to his discharge status.  An officer, who is also in the reserves, suggested he take this action to have his record corrected.  

	e.  He has tried to reenlist after learning there is now a substitute physical fitness test (bicycle instead of running) but was told he would need a waiver.
	e.  He is a solid American who deserves to the have the only negative mark that has stood against him removed.
 
3.  The applicant provides copies of:

* 25 May 2010 Plan of Care from Marino Therapy Center
* his Sports Medicine Program from the Tennessee Sports Medicine Group
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 6 June 1991.  He completed training and he was awarded military occupational specialty 12B (Combat Engineer).

3.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failing to go at the prescribed time to remedial physical training formations on 29 January and 10 February 1992.

4.  The applicant was notified by his commander that he was being considered for separation under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance, and was recommending an honorable discharge.  The commander states the reasons for his proposed action were that the applicant's failure of two consecutive Army Physical Fitness Tests (APFT) and the NJP for missing formations.

5.  He consulted with counsel and acknowledged his rights and requested consulting counsel.  He elected to not make a statement in his own behalf.

6.  The applicant’s commander subsequently recommended the applicant be separated from the service under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance, with an honorable discharge.

7.  His medical records are not available for review, however a 10 March 1992, medical examination found the applicant to be qualified for separation.  The Standard Form (SF) 88 (Report of Medical Examination) shows he was treated for Pes Planus (Flat Feet), and the SF 93 (Report of Medical History) shows he had been treated for Vasculitis - both feet.  Neither form contains any comments concerning the applicant's calves. 

8.  The separation authority ultimately approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 13, with issuance of a General Discharge Certificate.

9.  Accordingly, on 4 May 1992, the applicant was discharged with a general discharge.  He completed 10 months and 29 days of creditable active service.

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

11.  In support of his request, the applicant provides:

	a.  a Plan of Care from the Marino Therapy Centers, dated 25 May 2010 showing the applicant presented a long term history of calf/shin pain only when running.

	b.  his Sports Medicine Program from the Tennessee Sports Medicine Group which shows he has a history of shin pain   A list of "Active Release Techniques" is provided. 

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides that commanders will separate a member under this chapter when, in the commander’s judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

13.  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.

14.  Army Regulation 40-501 (Standards f Medical Fitness), paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his under honorable conditions (General) discharge should be changed to a medical discharge because he had a muscle disorder that went undiagnosed.  The disorder has been discovered and his military records and discharge status should be corrected.  

2.  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.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  Unfortunately, there is no evidence of record supporting his assertion that he had an undiagnosed medical condition while he was on active duty.  The medical examination conducted in conjunction with his separation does not support the applicant’s contention.

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  Therefore, a general discharge is warranted.  

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110017388



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ABCMR Record of Proceedings (cont)                                         AR20110023233



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