IN THE CASE OF:	  

		BOARD DATE:	  30 May 2013

		DOCKET NUMBER:  AR20120020432 


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 to change his general, under honorable conditions discharge to a medical discharge.

2.  The applicant states his knee condition was recently diagnosed as a service-connected injury. 

3.  The applicant provides no additional documents.

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.  His record shows he enlisted in the Oklahoma Army National Guard (OKARNG), was ordered to active duty, and completed basic and advanced individual training during the period 12 June 1994 to 3 October 1994. 
3.  The applicant enlisted in the Regular Army on 10 June 1997.

4.  His disciplinary history includes adverse counseling statements for the following offenses during the period 15 December 1998 to 3 November 1999:

* failure to report to his appointed place of duty at the time prescribed on numerous occasions
* failure to pass the diagnostic Army Physical Fitness Test (APFT)
* rehabilitative failure 

5.  He received non-judicial punishment under Article 15, Uniform Code of Military Justice on 24 March 1999 for failure to go to his appointed place of duty on 15 March 1999.

6.  His record contains a Standard Form (SF) 93 (Report of Medical History) which shows in:

* Item 6 (Purpose of Examination) - Chapter
* Item 6 (Date) - 29 September 1999
* Item 10 (Past/Current Medical History) - recurrent back pain or any back injury, foot trouble  
* Item 12 - remarks include both knee and back pain
* Item 25 - (Physician's Summary and Elaboration of All Pertinent Data) chronic low back pain, chronic bilateral knee pain and allergic rhinitis

7.  His record contains an SF 88 (Report of Medical Examination) which shows in:

* Item 5 (Purpose of Examination) - Chapter
* Item 6 (Date of Examination) - blank
* Item 38 (Clinical Evaluation) - all normal 
* Item 73 (Recommendation - blank
* Item 74 (Summary) - chronic low back pain, chronic bilateral knee pain
* and allergic rhinitis
* Item 77 - (Examinee) is qualified for separation

8.  On 1 December 1999, his unit commander notified him that he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, paragraph 13-2, for unsatisfactory performance.  The commander cited his failure of three consecutive record APFTs.  The unit commander also informed the applicant that he could receive a General Discharge Certificate.  The unit commander advised the applicant of his rights to consult with legal counsel, to submit written statements in his own behalf, and to obtain copies of documents that would be sent to the separation authority supporting the proposed separation action.  He was also advised that he could waive these rights in writing.  He acknowledged receipt of the unit commander's notification on the same date.

9.  On the same date, his unit commander recommended that he be separated from the Army under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance.  The unit commander cited his failure of three consecutive for record APFTs as the basis for this action.

10.  Having been advised by consulting counsel, he acknowledged the fact that he had been counseled regarding the basis for the contemplated separation action, its effects, and the rights available to him.  He was also informed that if he was issued a general discharge, he could expect to encounter substantial prejudice in civilian life.  He submitted a statement in his own behalf, wherein he expressed that he believes he was being treated unfairly due to a personality conflict between him and his supervisor.

11.  On 2 December 1999, the separation authority approved the applicant's discharge action and directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-2, with a general, under honorable conditions discharge.

12.  On 8 December 1999, he was discharged accordingly.  Block 24 (Character of Service) of the DD Form 214 shows he was issued an Under Honorable Conditions (General) Discharge.  Block 25 (Separation Authority) shows he was discharged under the provisions of Army Regulation 635-200, chapter 13.  Block 26 of this form shows he was assigned a Separation Program Designator code of "JHJ."  Block 28 (Narrative Reason for Separation) shows "Unsatisfactory Performance."

13.  There is no evidence that he applied to the Army Discharge Review Board for an upgrade of his discharge.

14.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, 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.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.

	a.  Paragraph 3-1 (Standards of unfitness because of physical disability) 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.

	b.  Paragraph 3-2 (Presumptions), subparagraph b, provides that when a Soldier is being separated or retired for reasons other than physical disability, continued performance of assigned duty commensurate with his rank or grade until the Soldier is scheduled for separation, creates a presumption that the Soldier is fit.  The presumption of fitness can be overcome if the evidence establishes that he/she was unable to perform his/her duties, or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his general under honorable conditions discharge should be changed to a medical discharge because his knee injury was found to be service-connected was found to lack merit.

2.  The applicant was not discharged based on his injuries.  He was discharged due to unsatisfactory performance due to failure of three consecutive record APFTs.

3.  The applicant's separation physical does not show he requested or received treatment for his knee prior to his separation from active duty.  There is no evidence that indicates his injuries or impeded his ability to perform.

4.  Based on the foregoing, there is insufficient basis to grant the applicant's request.



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)                                         AR20120020432





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ABCMR Record of Proceedings (cont)                                         AR20120020432



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