IN THE CASE OF:	  

		BOARD DATE:	  4 June 2013

		DOCKET NUMBER:  AR20120019775 


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 under honorable conditions discharge be changed to medical retirement based on his service-connected disability rating of 30 percent (%).  

2.  He states he was injured prior to discharge.

3.  He provides no additional documents.  He indicated on his application he provided a Department of Veterans Affairs rating; however, this document was not attached to his application.  

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 May 1988 for a period of three years.  He completed one station unit training and was awarded military occupational specialty 13B (Cannon Crewman).  

3.  His DA Form 2-1 (Personnel Qualification Record) shows he was absent without leave (AWOL) from 3 to 14 October 1988.

4.  On various dates between September 1988 and January 1989, he received adverse counseling statements for being absent from his place of duty, failing to report to his place of duty, breaking restriction, duty performance, poor attitude, lack of motivation, apathy, and rehabilitation transfer.  

5.  His counseling statement, dated 27 October 1988, indicates he received an Article 15 on 26 September 1988 for failing to report and failing to sign in for extra duty; however, this Article 15 is not available.  

6.  His service record contains two Standard Forms 558 (Emergency Care and Treatment), dated 8 and 11 March 1989, which indicate he was treated for pain in his right wrist and for ingrown toe nails in both great toes.  

7.  On 21 March 1989, he was convicted by a summary court-martial of breaking restriction.  He was sentenced to confinement for 30 days and a forfeiture of $466.00 pay for one month.  

8.  On 18 April 1989, the unit commander notified him of the proposed recommendation to discharge him under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsatisfactory performance.  He was advised of his rights.  He acknowledged notification of separation action, consulted with legal counsel, was advised of adverse effects of a general discharge and of his right to apply to the Army Discharge Review Board and this Board for an upgrade, and he did not submit statements in his own behalf.

9.  On 20 April 1989, the separation authority waived rehabilitation requirements and approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance with service characterized as general under honorable conditions.

10.  On 28 April 1989, he was discharged under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He completed 11 months and 7 days of active military service with 12 days of lost time.  

11.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 provides for separation due to unsatisfactory performance when in the commander's judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order, and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

13.  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 rated at least 30%.

14.  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 rated at less than 30 percent.  Section 1212 provides that a member separated under section 1203 is entitled to disability severance pay.

15.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish an error or injustice on part of the Army.

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

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant's administrative separation under the provisions of Army Regulation 635-200, chapter 13 was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  

2.  The evidence of record shows he received one Article 15 and was convicted by a summary court-martial.  

3.  His service record contains clinical treatment records which show he was treated for pain in his right wrist and for ingrown toe nails in both great toes.  His service record is void of evidence which shows he was injured prior to his discharge on 28 April 1989.

4.  There is no evidence to show the applicant could not perform his duties due to any medical condition.  Therefore, there is no basis for changing his general under honorable conditions to a medical retirement.

5.  He contends he received service-connected disability rating of 30% from the VA.  However, an award of a higher VA rating does not establish an error or injustice on the part of the Army.  

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)                                         AR20120019775





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ABCMR Record of Proceedings (cont)                                         AR20120019775



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