IN THE CASE OF:	  

		BOARD DATE:	  6 July 2012

		DOCKET NUMBER:  AR20120000709 


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 discharged or retired due to a physical disability.  He also requests that his rank and pay grade be adjusted based on his year of service.

2.  The applicant states he believes his service records show he had a medical condition at the time of his separation that rendered him unfit.  He contends that he was diagnosed with advanced stage dental condition while on active duty in October 1999; and with behavioral health and mental health conditions in January, February and March 2000.  He also contends that he was never promoted during the year he served on active duty even though he had completed 30 hours of college credit.

3.  The applicant provides copies of:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Certificate of training for the Defensive Driving Course II
* Letter from the Army Discharge Review Board (ADRB), dated 7 May 2004
* Academic transcript (unofficial copy)
* DA Form 5123 (Reassignment Records Checklist)
* DD Form 2648 (Pre-separation Counseling Checklist)
* Display, Patient Appointments, dated January, February, and March 2000
* Operator Qualification Record
* Department of Veterans Affairs (VA) Rating Decision, dated 2 December 2010

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.  On 21 April 1999, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 13B (Cannon Crewmember).  He was advanced to Private/E-2 on 2 June 1999.

3.  On 8 March 2000, charges were preferred under the Uniform Code of Military Justice (UCMJ) for the following violations:

	a.  Article 112a (one specification) for wrongful use of marijuana on or between 1 January and 1 February 2000;

	b.  Article 89 (one specification) for disrespect towards a commissioned officer;

	c.  Article 90 (three specifications) for willfully disobey lawful commands on three separate occasions; and

	d.  Article 91 (four specifications) for twice being disrespectful towards commissioned officers and twice for willfully disobeying orders from noncommissioned officers.

4.  On or about 9 March 2000, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions (UOTHC) discharge, and of the procedures and rights that were available to him.

5.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

6.  On 17 March 2000, the separation authority approved the applicant’s request for discharge and directed that he be issued a UOTHC discharge.  On 19 April 2000, the applicant was discharged accordingly.  He had completed a total of 
10 months and 27 days of creditable active duty service.

7.  In May 2002, the applicant submitted a request to the Army Discharge Review Board (ADRB) for an upgrade of his discharge wherein he stated that he was told to get out of Montgomery College and go to the Army.  Once he completed boot camp, he would be able to go to school.  After completing boot camp, he was sent to Fort Hood, Texas where he was denied all school privileges.  He then refused to stay in the military.  Harsh and inhumane treatment began.  He needed his discharge upgraded so that he could have a better life.

8.  In September 2002, the ADRB notified the applicant that his request for an upgrade of his discharge had been denied.  The ADRB determined, based on a records review, that his discharge had been proper and equitable.

9.  On 3 May 2004, the applicant testified before the ADRB.  The ADRB carefully examined the applicant's records and heard his testimony.  His honorable service and his infractions were given full consideration.  The ADRB did not condone his misconduct, but did determine that the discharge was inequitable based on the nature of the offenses.  The ADRB granted relief in the form of an upgrade of his characterization of service to fully honorable and a change to the narrative reason for separation to Secretarial Authority.  The ADRB also changed his reentry code (RE)-3 to RE-1 and restored his rank to private, pay grade E-2.

10.  The VA Rating Decision, dated 2 December 2010, as provided by the applicant states that he was awarded service connection for tinnitus rated at 
10 percent disabling.

11.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling.  It further provides at section 1201, for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.

12.  Title 38, U.S. Code, sections 310 and 331, permit 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.  The VA, in accordance with its own policies and regulations, 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 physically unfit 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.

13.  Army Regulation 600–8–19 (Enlisted Promotions and Reductions) provides the following time in service and grade eligibility criteria for advancement to the indicated ranks/pay grades:

* Private/E-2: 6 months time in service
* Private first class/E-3: 12 months time in service and 4 months time as E-2
* Specialist/E-4: 24 months time in service and 6 months as E-3

14.  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.  The applicant contends that his military records should be corrected to show he was discharged or retired due to a physical disability based on a diagnosis of advanced stage dental condition while on active duty in October 1999; and behavioral health and mental health conditions in January, February and March 2000.  He also contends that his rank and pay grade should be adjusted based on his year of service.

2.  The available evidence clearly shows that the applicant was initially discharged in lieu of court-martial with a UOTHC characterization.  The ADRB subsequently determined that his discharge was proper but that his characterization was inequitable based on the nature of the offenses.  His characterization was upgraded to honorable.

3.  There is no available evidence showing that 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.  Accordingly, the applicant was separated from active duty for reasons other than physical disability.

4.  The applicant's contention that he was denied advancement is without merit.  The evidence of record shows that he was advanced to the rank of private, pay grade E-2 during his active duty service.  Advancement to private first class, pay grade E-3 requires 12 months of service, but he was discharged with less than 11 months of creditable active duty service.

5.  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)                                         AR20120000379



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ABCMR Record of Proceedings (cont)                                         AR20120000709



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