IN THE CASE OF:	  

		BOARD DATE:	  29 January 2013

		DOCKET NUMBER:  AR20120011288 


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 an upgrade of his under other than honorable conditions discharge to a general under honorable conditions discharge or a medical discharge.

2.  The applicant states he was unjustly charged with misconduct and discharged.

3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* 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 U.S. Army Reserve Delayed Entry Program (DEP) for 6 years on 3 November 1978.  On 15 January 1979, he was discharged from the DEP and enlisted in the Regular Army for 3 years on 16 January 1979.  He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he attained while on active duty was private first class/E-3. 

3.  A Statement of Formal Counseling in Support of Administrative Action, undated, shows the applicant was counseled as follows:

* on 18 June 1980, for missing formation and poor attitude
* on 14 July 1980, for missing formation
* on 7 October 1980, for his conduct
* on 15 January 1981, for assault on another Soldier
* on 8 March 1981, for low test scores

4.  Records show the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the following:

* on 21 November 1980, for failing to go at the time prescribed to his appointed place of duty on 25 October 1980
* on 22 January 1981, for threatening to assault another Soldier with a knife on or about 15 January 1981 and dereliction of duty on or about 16 January 1981

5.  On 16 March 1981, the applicant was arrested by civil authorities and held in confinement for 81 days pending trial.

6.  A DA Form 2822 (Report of Mental Status Evaluation), dated 24 June 1981, shows the applicant had no mental deficiencies and was declared to be mentally capable to understand and participate in discharge proceedings, mentally responsible, and met retention standards.

7.  The applicant's Standard Form 93 (Report of Medical History) and Standard Form 88 (Report of Medical Examination), both dated 24 June 1991, show the applicant was in good health and qualified for discharge under chapter 14 of Army Regulation 635-200 (Enlisted Separations) .

8.  The applicant's commanding officer provided the following comments in a DA Form 2496-1 (Disposition Form), undated:

* individual is average when constantly supervised
* individual drinks heavily and often times misses formation and his place of duty
* individual was told discharge would be considered if he did not rehabilitate himself

9.  On 27 August 1981, the applicant appeared with counsel before the General Court of Justice, Superior Court Division, Cumberland County, North Carolina:

a.  for charges of:

* felonious hit and run-personal injury
* careless and reckless driving
* speeding at 100 miles per hour in a 35 miles per hour zone
* assault on a law enforcement officer with a deadly weapon

   b. The applicant entered a plea of no contest to assault on a law enforcement officer with a deadly weapon and guilty to the remaining charges.

   c. The applicant received a suspended 3-year sentence with supervised probation for 3 years and was required to surrender his driver's license.  He did not appeal the sentence.

10.  On 8 October 1981, his immediate commander notified him of his intent to initiate separation action against him in accordance with section III, chapter 14 of Army Regulation 635-200 for misconduct – conviction by civil court.

11.  On 9 October 1981, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  In his acknowledgement, he indicated he:

* understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him
* understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State laws

12.  On 20 October 1981, the applicant along with counsel appeared before a board of officers.  The board of officers recommended his separation with an under other than honorable conditions discharge.

13.  On 18 January 1982, the separation authority approved the administrative discharge and ordered the applicant discharged under the provisions of paragraph 14-12a of Army Regulation 635-200 by reason of misconduct – conviction by civil court and directed issuance of an Under Other Than Honorable Conditions Discharge Certificate.

14.  The applicant was discharged on 9 February 1982.  The DD Form 214 he was issued shows he was discharged by reason of misconduct – conviction by civil court under the provisions of chapter 14, section III, Army Regulation 
635-200, with his service characterized as under other than honorable conditions.  This form further confirms he completed 3 years and 23 days of creditable active military service and he had lost time during the period 15 March 1981 through 4 June 1981.

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

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconducts, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  Only the general court-martial authority (GCMA) may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

17.  Army Regulation 635-200, paragraph 1-35 states that when the examining medical officer decides a member being considered for elimination for misconduct (chapter 14) does not meet the retention medical standards, he or she will refer that member to a medical board.  The medical treatment facility commander will furnish a copy of the approved board proceedings to the commander exercising GCMCA over the member concerned.  The commander exercising GCMCA will direct the member to be processed through disability channels per Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) when the disability is determined to be the cause or substantial contributing cause of the misconduct or circumstances warrant disability processing instead of administrative processing.

18.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (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.  Paragraph 3-1 provides that 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 member may reasonably be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness).

19.  Paragraph 3-1 provides that 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 their office, grade, rank, or rating.  To ensure all Soldiers are 
physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation
40-501, chapter 3.  

20.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Chapter 2 governs physical standards for enlistment.  Chapter 3 governs medical fitness standards for retention and separation.

21.  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%.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his under other than honorable conditions discharge to a general under honorable conditions discharge or a medical discharge was carefully considered.

2.  The applicant's record of service shows he received an Article 15 on two occasions, numerous counselings for missing formation, assault, and a conviction by civil authorities.  Based on this record of indiscipline, the applicant's misconduct renders his service unsatisfactory.  Therefore, he is not entitled to an under honorable conditions (general) discharge.  

3.  The applicant failed to show through the evidence submitted or the evidence of record that he was medically/physically unfit at the time of separation and should have been processed for separation due to physical disability.  

4.  Therefore, absent evidence to the contrary, it is concluded his separation processing was accomplished in accordance with the applicable regulation and the requirements of law and regulation were met and his rights were fully protected throughout the separation process.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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 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)                                         AR20120011288



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ABCMR Record of Proceedings (cont)                                         AR20120011288



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