IN THE CASE OF:	  

		BOARD DATE:	  5 June 2012

		DOCKET NUMBER:  AR20110023611 


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 that the reason for his discharge be changed to medical (for sleep apnea).

2.  The applicant states no one seemed to have ever dealt with sleep apnea before so they considered him to have always had this problem.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Transfer 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's service medical and dental records are believed to be on permanent loan to the Department of Veterans Affairs and are not available for review.

3.  The applicant enlisted in the Regular Army on 19 February 1980, and he completed training and was awarded military occupational specialty 44B (Metal Worker).

4.  On 11 June 1981, he was denied advancement to private first class (E-3) due to poor duty performance.

5.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, as follows on:

	a.  28 October 1980, for failure to go to his appointed place of duty – field maneuvers;

	b.  21 January 1981, for disobeying a lawful order – to dispose of a knife; 

	c.  18 December 1981, for failure to go to his appointed place of duty – physical fitness formation; and

	d.  29 January 1982, for breaking restriction.

6.  The 21 January 1981 NJP initially included two additional charges of failure to go to his appointed place of duty – morning formation.  These charges were dismissed after a medical doctor determined that there may have been a medical reason for the applicant's inability to get up.  He was placed on 5 days bed rest.  The nature or diagnosis of this medical condition is not of record.

7.  On 4 November 1981, he received a Letter of Reprimand for being drunk and disorderly.

8.  On 14 May 1982, a bar to reenlistment was imposed due to the applicant's history of misconduct.

9.  On 7 June 1982, his unit commander initiated separation action for unsuitability because of inaptitude and apathy, defective attitude and inability to expend effort constructively.   During the separation processing the applicant is reported to have undergone a medical examination.  There is no evidence of any medical condition that would have rendered the applicant physically unfit to perform the duties of his office, rank, grade or rating because of disability. 

10.  The recommendation for separation was approved and the applicant was discharged on 6 July 1982 for unsuitability due to inaptitude.  He had 2 years, 4 months, and 18 days of creditable service.

11.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of the regulation, as in effect at the time, provided for separation due to various reasons including inaptitude.  The regulation required that separation action would be taken when, in the commander’s judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  Service of Soldiers separated because of unsuitability under this regulation was characterized as honorable or under honorable conditions.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-1, provides that the mere presence of an 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating.

DISCUSSION AND CONCLUSIONS:

1.  While there is one reference to a medical problem contributing to or being the cause on two occasions of the applicant's failure to go to his appointed place of duty - morning formation - there is no specific reference as to what this medical condition was or that it was a contributing factor in his other infractions and reported poor performance.  

2.  The applicant has not provided and the record does not contain any evidence that he was or is suffering from sleep apnea or that this condition was the cause of the misconduct and poor duty performance that resulted in his discharge.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

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)                                         AR20110023611



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ABCMR Record of Proceedings (cont)                                         AR20110023611



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