BOARD DATE:	  5 February 2013

		DOCKET NUMBER:  AR20120011996 


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 (who died after submitting his application to the Board) requests correction of his records to show he was discharged by reason of disability.

2.  He states:

* his discharge should be corrected to show he was discharged due to disability since he was suffering from service-connected post-traumatic stress disorder (PTSD)
* he should have been counseled for treatment of PTSD instead of being forced out of the Army, the only life he had been trained for and the only life he seemed to be able to adjust to
* his character was disregarded – only the consequences of his chronic alcohol use were looked at and the decision was made to force him out before he reached 20 years for retirement
* he and his wife are disabled and do not have post/base privileges
* his wife needs medical coverage for what Medicare does not cover and they both should be allowed medical privileges due a retired service person

3.  He provides no additional evidence.  (His widow provides a copy of his death certificate.)



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 27 November 1973 with prior enlisted service.  He was awarded military occupational specialty (MOS) 13B (Cannon Crewman).  On 25 December 1975, he was promoted to staff sergeant/E-6 and this is the highest rank/grade he attained while serving on active duty.  His military record shows he reenlisted in the Regular Army on 11 October 1977.

3.  A review of the applicant's military records shows he was counseled as follows:

* on 9 November 1977, for failing to repair
* on 11 November 1977, 20 January 1978, 11 July 1978, and 2 March 1979, for indebtedness
* on 24 January 1978, for not being ready for inspection
* on 29 March 1979, driving under the influence
* on 2 January 1979, for submitting a fraudulent claim

4.  A review of the applicant's military records further shows he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, as follows:

* on 20 January 1978, for failing to go at the time prescribed to his appointed place of duty
* on 30 May 1978, for failing to go at the time prescribed to his appointed place of duty

5.  On 2 July 1979, his immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 13 of Army Regulation 635-200 (Personnel Separations) for frequent incidents of a discreditable nature with military and civil authorities and letters of indebtness.

6.  On 20 July 1979, 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 unsuitability, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures/rights available to him.  He waived consideration of his case before a board of officers and elected not to submit statements on his own behalf.  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

7.  On 3 August 1979, the separation authority requested additional information regarding the applicant's indebtedness to the Fort Bragg Credit Union, his fraudulent claim against the government, and his alleged driving under the influence (DUI) incident.

8.  His commanding officer provided the requested information and included a statement which showed the applicant's military police record had his DUI entry and an off-post offense occurring on 27 May 1979.  The violation was for driving with a revoked license and carrying a lock-blade knife.  At the time, his unit had not received his DA Form 3975-1 (Military Police Report – Additional Offenses), as his trial which was scheduled for 27 June 1979 had been postponed until 7 August 1979.

9.  On 8 August 1979, the separation authority approved the administrative discharge and ordered the applicant's discharge under the provisions of paragraph 13-12b of Army Regulation 635-200 by reason of unsuitability and directed the issuance of a General Discharge Certificate.

10.  Accordingly, he was discharged on 31 August 1979.  His DD Form 214 (Report of Separation from Active Duty) shows:

* he completed 1 year, 10 months, and 21 days of active service during this enlistment that was characterized as under honorable conditions
* he had 6 years, 10 months, and 9 days of prior active service
* he had 3 years and 5 days of prior inactive service
* he had 11 years, 9 months, and 5 days of total service for pay

11.  There is no indication in his military records that shows:

* he was issued a permanent physical profile
* he suffered an illness or an injury that rendered him unable to perform the duties required of his grade or MOS

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states 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 his or her office, grade, or rank.

13.  Army Regulation 635-40 also states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.  Application of this rule does not mandate a finding of fit.  The presumption is rebuttable and is overcome when the preponderance of evidence establishes the Soldier was physically unable to perform adequately the duties of his or her office, grade, or rank.

14.  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 of less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his records to show he was discharged by reason of disability was carefully considered.

2.  Even if he suffered an injury or an illness, 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 reasonably may 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 that service member can be medically separated or retired.

3.  There is no evidence in his records and he did not provide any substantiating evidence that shows he was medically disqualified for retention or separation.  Nowhere in his records does it show he:

* was issued a permanent physical profile
* suffered an illness or an injury that rendered him unable to perform the duties required of his grade or MOS

4.  In view of the foregoing evidence, 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)                                         AR20120011996



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ABCMR Record of Proceedings (cont)                                         AR20120011996



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