IN THE CASE OF:	  

		BOARD DATE:  7 February 2013

		DOCKET NUMBER:  AR20120012239 


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 his general discharge be changed to a medical discharge.

2.  The applicant states:

* he was diagnosed with sleep apnea on 3 March 2010
* sleep apnea was the true reason for his misconduct
* his medical records will confirm his sleep apnea

3.  The applicant provides a diagnostic polysomnography report, dated 3 March 2010.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 26 July 2007.  He completed his training and was awarded military occupational specialty 15B (aircraft powerplant repairer). 

2.  He was counseled for:

* being late for work
* failure to achieve a passing score on the Army Physical Fitness Test (APFT)
* noncompliance with the Army overweight and body fat standards
* missing physical training on more than one occasion
* missing work
* missing formation on more than one occasion
* failure to report to formation
* being in the wrong uniform
* failure to follow a direct order
* being disrespectful towards a senior noncommissioned officer
* being late for extra duty 

3.  On 5 August 2009, nonjudicial punishment (NJP) was imposed against him for failing to go at the time prescribed to his appointed place of duty.

4.  On 2 November 2009, NJP was imposed against him for failing to go at the time prescribed to his appointed place of duty and disobeying a lawful command.

5.  On 19 November 2009, NJP was imposed against him for failing to go at the time prescribed to his appointed place of duty (5 specifications) and making a false official statement.

6.  On 11 January 2010, NJP was imposed against him for using disrespectful language towards a noncommissioned officer.

7.  On 24 February 2010, he underwent a mental status evaluation and was found mentally responsible. 

8.  Records show he completed a medical examination on 26 February 2010; however, this report is not available.

9.  On 9 March 2010, he was notified of his pending separation for misconduct (patterns of misconduct) under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12b.  The unit commander cited his:

* continued substandard performance
* failing to meet APFT standards
* failing to obey orders
* failing to meet the body fat standards
* continuously failing to report for duty

10.  On 10 March 2010, he consulted with counsel, acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued, and elected not to submit a statement on his own behalf.

11.  On 9 April 2010, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.
12.  On 23 April 2010, he was discharged under honorable conditions (general) under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct (patterns of misconduct).  He completed a total of 2 years, 8 months, and 28 days of creditable active service.

13.  He provided a diagnostic polysomnography report, dated 3 March 2010, from the Georgetown Sleep Center in Georgetown, TX.  The report shows he was diagnosed with mild obstructive sleep apnea consistent with the upper airway resistance syndrome: snoring and respiratory events resulted in significant sleep disruption.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense (military or civilian offense), and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

15.  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 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 Soldier reasonably may be expected to perform because of his or her office, grade, or rank.  It states that 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 they 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 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 indicates that a Soldier is fit.

16.  Army Regulation 635-40 also provides an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been 


started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.

17.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his/her office, rank, grade, or rating because of disability incurred while entitled to basic pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his general discharge should be changed to a medical discharge because he was diagnosed with sleep apnea and this condition was the reason for his misconduct. 

2.  It is acknowledged he was diagnosed with mild obstructive sleep apnea on 
3 March 2010.  However, he provides no evidence to show this condition rendered him unfit to perform his military duties.  

3.  There is no evidence to show he could not perform his duties while on active duty and he was never referred for physical disability processing.  However, even if he had been referred for disability processing, his administrative separation which authorized a characterization of service of under other than honorable conditions could have discontinued that process if the General Court-Martial Convening Authority had determined his medical condition was not the cause of his misconduct.  Therefore, there is insufficient evidence to show a medical discharge was warranted.  

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)                                         AR20120012239



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120012239



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1