IN THE CASE OF:	  

		BOARD DATE:	  20 June 2013

		DOCKET NUMBER:  AR20120021368 


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 an upgrade of his discharge.

2.  The applicant states:

* he got into a verbal altercation with a noncommissioned officer who used derogatory terms and language towards him
* he walked away because he was being medically discharged the following Monday and did not want to get into trouble
* he was summoned to the first sergeant's office, along with eight commissioned officers, and was told to sign some papers
* he was told if he refused to sign he would be court-martialed
* he was not allowed to call witnesses to speak on his behalf regarding the altercation
* he was young, his first time away from home, and could not call his parents for advice
* as a result, he signed papers unaware of the impact on his future
* he has attached his medical records to prove the Army determined he was physically unable to perform his duties which did not exist prior to entry
* due to the type of discharge received he is ineligible for treatment at the Department of Veterans Affairs (VA)
* he received numerous awards and decorations within his first year of service



3.  The applicant provides:

* 10 pages of his medical record and allied documents
* a self-authored statement
* DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) 

CONSIDERATION OF EVIDENCE:

1.  On 21 January 1994, at age 22, the applicant enlisted in the Regular Army.  He was awarded military occupational specialty 96R (Ground Surveillance Systems Operator).

2.  He submitted 10 pages of his medical record and allied lab reports from Blanchfield Army Medical Hospital, Fort Campbell, KY, dated between 30 August 1994 and 11 April 1995, which state he had been treated for knee pain.  

3.  The applicant's record contains and he submitted a DA Form 3947, dated 
7 July 1995, which shows he underwent an MEB for chronic bilateral patellofemoral syndrome (pain) of the knees.  The MEB recommended that he be referred to a PEB.  On 20 July 1995, the applicant concurred with the findings and recommendations of the MEB.

4.  On 4 August 1995, the PEB found the applicant physically unfit due to chronic bilateral patellofemoral pain syndrome.  He was rated under the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD) codes 5257 and 5003 and granted a 0 percent rating.  The recommendation was separation with severance pay.  On 18 August 1995, the applicant concurred with the PEB's findings and recommendation and waived a formal hearing of his case.

5.  The specific facts and circumstances surrounding his discharge processing are not available for review.  However, the available evidence includes a properly-constituted DD Form 214 that contains the authority and reason for his discharge.  

6.  On 22 November 1995, he was discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations), for the good of the service in lieu of trial by court-martial, with an under other than honorable conditions discharge.  The DD Form 214 he was issued shows he completed 1 year, 10 months, and 2 days of total active service.

7.  On 1 April 2011, the Army Discharge Review Board denied his request for an upgrade of his discharge.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized an under other than honorable conditions discharge was normally considered appropriate.

9.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

10.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

11.  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.  Paragraph 4-3 provides that 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. 

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant's record is void of the specific facts and circumstances surrounding his discharge processing, it does contain a properly-constituted 
DD Form 214 that identifies the authority, reason, and the characterization of the applicant's service.

2.  The evidence of record shows the applicant was found physically unfit for retention due to knee pain.  However, he was not discharged based on his medical condition.  Although he may have suffered from a medical condition while in the military he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service to avoid a trial by court-martial.  Therefore, he could not continue physical disability processing when action was being taken to discharge him with a characterization of service of under other than honorable conditions.  

3.  It is presumed in this case that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the discharge process.  

4.  As a result of the issuance of an under other than honorable conditions discharge he is ineligible for many or all benefits administered by the VA and he may be deprived of his rights and benefits as a veteran under both Federal and State laws.  

5.  His record shows he was 22 years of age at the time of his enlistment and he was 23 years of age at the time of discharge.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

6.  The ABCMR does not upgrade discharges solely for the purpose of making the applicant eligible for benefits.  Every case is individually decided based upon its merits when an applicant requests a discharge upgrade.  

7.  The available evidence is insufficient for granting 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 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)                                         AR20120021368



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ABCMR Record of Proceedings (cont)                                         AR20120021368



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