IN THE CASE OF:	  

		BOARD DATE:	  18 June 2013

		DOCKET NUMBER:  AR20120019668 


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 under honorable conditions (general) discharge be changed to a medical discharge. 

2.  The applicant states:

* he has a vascular malformation on his spine that caused him to become partially paralyzed and weak
* he totally freaked out during his first parachute jump at Fort Benning, GA, and the noncommissioned officers and officers thought it to be cowardice and changed his medical report
* his doctor showed him a tumor and told him he was disqualified for Airborne
* he believes this was done to put him out of the Army with nothing and with malice
* he was put through living hell when he arrived at Fort Bragg

3.  The applicant provides 3 pages of medical records.

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 10 March 1982 for a 3-year period.  After having failed Advanced Individual Training for military occupational specialties (MOS) O5C (Radio Teletype Operator) and MOS 16P (Short Range Missile Crewman), he successfully completed training and was awarded MOS 76C (Equipment Records and Parts Specialist) in March 1983.  In April 1983, he completed the basic airborne course.   

3.  Records show the applicant received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on the following occasions:

* on 14 December 1982, for assaulting another Soldier
* on 25 July 1983, for failure to go to his prescribed place of duty
* on 14 October 1983, for failure to go to his appointed place of duty

4.  Records also show the applicant received extensive counseling for missing formation, lack of cooperation, failure to repair, and following instructions.

5.  A DA Form 3349 (Physical Profile Board Proceedings), dated 31 May 1983, shows the applicant was given a 30-day temporary profile for a fractured right fibula.  His profile prohibited jumping, parachute jumping, walking or marching over 15 minutes without a 5 minute rest period, prolonged stooping or squatting, hand-to-hand combat or contact sports, climbing of ropes, ladder, mountain, stairs, or driving a motor vehicle.  

6.  The applicant's available medical records show he was periodically seen for his fractured fibula.  His record is void of evidence of a vascular malformation or that he was referred to a medical evaluation board (MEB) or physical evaluation board (PEB).

7.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 14 October 1983, shows the applicant was mentally responsible and had the mental capacity to understand and participate in proceedings. 

8.  On 17 October 1983, the applicant was notified by his unit commander of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 13, for unsatisfactory performance.  The commander cited the applicant's sub-standard performance, as evidenced by his repeatedly missing formation, lack of cooperation, failure to following instructions, and his lack of care for personal equipment, as the basis for the separation action.  

9.  On 20 October 1983, the applicant was barred from reenlistment based on his poor conduct and duty performance.  

10.  On 28 October 1983, after having been advised by consulting counsel, the applicant acknowledged the fact that he had been counseled regarding the basis for the contemplated separation, its effects, and the rights available to him.  He was also informed that if he was issued a general, under honorable conditions discharge, he could expect to encounter substantial prejudice in civilian life.  The applicant submitted statements in his own behalf indicating his desire to remain in the Army and acknowledged his performance had been substandard due to personal problems.

11.  On 2 November 1983, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance, and directed giving him a general under honorable conditions characterization of service.

12.  On 18 November 1983, the applicant was discharged in accordance with the separation authority's direction.  His DD Form 214 shows he completed 1 year, 8 months, and 9 days of creditable active military service.

13.  On 2 March 2000, the ABCMR denied the applicant's request for a change in the characterization of his service.

14.  The applicant provides 3 pages of medical records with self-authored comments indicating falsified medical documents.  The medical record extracts also show:

	a.  He was seen by medical professionals on 16 March 1983 for an ankle injury he incurred the day before while doing a parachute landing fall.

	b.  He was given an x-ray, his ankle was placed in a cast, and he was instructed to return to the clinic when necessary. 

15.  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.  Separation by reason of disability (i.e., a "medical discharge") requires processing through the PDES.

   a.  Chapter 4 contains guidance on processing through the PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  The PEB evaluates all cases of physical disability equitably for the 
Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.  

   b.  This regulation further provides that to be permanently retired for physical disability, a Soldier's disabling condition must have been incurred or aggravated while entitled to basic pay and the condition must be rated as 30% disabling or more

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request to change his discharge to a medical discharge.

2.  His record is void of evidence of a spinal malformation that warranted referral to an MEB or PEB.  His administrative separation on 10 March 1982 was accomplished in accordance with regulations then in effect.

3.  The applicant failed to submit evidence that shows his injury required referral to an MEB or PEB and that his injury hindered his performance of duty.  Therefore, there is insufficient evidence on which to base the relief requested.









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)                                         AR20120019668



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ABCMR Record of Proceedings (cont)                                         AR20120019668



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