IN THE CASE OF:	  

		BOARD DATE:	  13 September 2012

		DOCKET NUMBER:  AR20120005060 


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 National Guard Bureau (NGB) Form 22 to show he was discharged on 11 October 1995 by reason of disability
* payment of back pay and allowances to a third party until his release from the psychiatric hospitalization

2.  The applicant states he served in the Mississippi Army National Guard (MSARNG) from 8 December 1992 to 10 November 1997 when he was wrongfully discharged by reason of civil conviction for aggravated assault.  However, he incurred a permanent disability on 11 October 1995 that forbade subsequent military pay or service.  The facts and circumstances leading to the 2 years subsequent to his discharge are reasonable to presume that he served those 2 years under a permanent disability.  He was denied his constitutional rights and due process.  He also had an ineffective and unprofessional counsel.

3.  The applicant provides:

* a self-authored legal brief against the State of Mississippi
* a self-authored certificate of interested persons
* various self-authored motions
* a self-authored judgment of the court
* a self-authored application for check from the Inmate Grant Fund
* State of Mississippi Judgment of Court
* two letters
* an Army Discharge Review Board (ADRB) Case Report and Directive

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 was born on 8 September 1975.  His records show he enlisted in the MSARNG on 8 December 1992 and he held military occupational specialty 55B (Ammunition Specialist).

3.  On 1 March 1997, the applicant completed a Standard Form 93 (Report of Medical History) wherein he stated he was in good health and was not taking any medication.  He also indicated he had not consulted or been treated by clinics, physicians, healers, or other practitioners within the last 5 years for other than minor illnesses.

4.  A Standard Form 88 (Report of Medical Examination), dated 1 March 1997, shows he underwent a periodic medical examination on that date.  The examining physician determined the applicant did not have any disqualifying disabilities and found him to be medically qualified for continued service in the MSARNG.

5.  On 26 July 1997, he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave from 25 to 27 June 1997.

6.  The complete facts and circumstances surrounding his discharge action are not available for review with this case.  However, on 1 November 1997, his immediate commander requested discharge orders be issued for the applicant for a felony conviction of aggravated assault.  He stated the applicant had been found guilty of aggravated assault by the State of Mississippi on 11 October 1995 but the court order was not forwarded to the unit until September 1997.  The commander further stated he ordered the applicant to appear at a discharge hearing on 1 November 1997 and the applicant failed to appear.

7.  His records contain a State of Mississippi court order that shows the applicant pled guilty and was found guilty on 11 October 1995 of aggravated assault and was sentenced to 1 year of confinement at the Mississippi Department of Corrections and 5 years probation.

8.  Orders Number 196-129, dated 10 November 1997, issued by the Adjutant General's Office, Jackson, MS, discharged him from the MSARNG, effective 10 November 1997, under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26P.

9.  The NGB Form 22 he was issued shows he was discharged on 10 November 1997, under the provisions of National Guard Regulation 600-200, paragraph
8-26P, by reason of conviction by a civil court with a general discharge.  He completed 4 years, 11 months, and 3 days of net service in the MSARNG.

10.  The applicant's available medical records do not show that he incurred any disabling injury/disorder while serving in the MSARNG.

11.  On 11 June 2007, the ADRB denied the applicant's request for an upgrade of his discharge and found the reason for his discharge and characterization of his service was both proper and equitable.

12.  National Guard Regulation 600-200 sets the policies, standards, and procedures for the separation of enlisted Soldiers from the ARNG.  The approval authority to separate Soldiers from the State ARNG is the State Adjutant General.  Chapter 8 establishes policy and prescribes procedures for the discharge and separation of enlisted personnel from the State ARNG for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, abuse of illegal drugs, and conviction by civil authorities.  

13.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, retention, and separation.  Paragraph 9-12 states Reserve component (RC) Soldiers with non-duty related (NDR) medical conditions who are pending separation for failing to meet the medical retention standards are eligible to request referral to a physical evaluation board (PEB) for a determination of fitness.  The process is designed to give the Soldier with NDR impairments the option of requesting a PEB solely for the purpose of a fitness determination, but not for a determination of eligibility for disability benefits. 
14.  Department of Defense Instruction 1332.38, definition E-2.1.20, defines NDR impairments as "impairment of members of the RC that were neither incurred nor aggravated while the member was performing duty, to include no incident of manifestation while performing duty which raises the question of aggravation."  Members with NDR impairments are eligible to be referred to the PEB for solely a fitness determination, but not a determination of eligibility for disability benefits.  The determination of whether a case is forwarded to the PEB as an NDR case (as opposed to a duty-related case) rests with the RC.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not provided any evidence and there is no evidence available that shows he incurred a physical disability/disorder on 11 October 1995.  Rather, the evidence of record confirms the applicant underwent a medical examination on 1 March 1997 and he was found physically qualified for continued service in the ARNG. 

2.  Although his record is void of the complete facts and circumstances surrounding his discharge action his record contains a court order that shows he was convicted of aggravated assault in the State of Mississippi on 11 October 1995.  His record also contains a memorandum that was written by his commander that indicates the court order was not received by the unit until September 1997.  His NGB Form 22 shows he was discharged under the provisions on National Guard Regulation 600-200 by reason of conviction by civil court with a general discharge.

3.  In the absence of evidence to the contrary, it is presumed his separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

4.  In view of the foregoing, he is not entitled to the requested relief.

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 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)                                         AR20120005060



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ABCMR Record of Proceedings (cont)                                         AR20120005060



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