BOARD DATE: 7 November 2013
DOCKET NUMBER: AR20130003535
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 (GD) be upgraded to an honorable discharge (HD).
2. The applicant states he was only 18 when he entered active duty with a hearing loss and he had hazardous noise exposure that aggravated this condition. Because of the drastic change in lifestyle and his difficulty hearing, he had difficulty adjusting to military life and became severely depressed.
3. The applicant provides copies of a Department of Veterans Affairs (VA) power of attorney form, his DD Form 214 (Certificate of Release or Discharge from Active Duty), 33 pages of service medical and dental records, an 8-page VA Progress Note, and 5 pages of requests for records.
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
1. Counsel requests that the applicant be granted an upgrade of his discharge and/or a medical retirement.
2. Counsel states the applicant should have received a medical discharge or an honorable discharge (HD). His records document he was suffering from depression, being proscribed Prozac, and had recorded incidents of feces on his clothes. His depression and other problems are further documented in the VA records provided warranting a consideration of a medical separation.
3. Counsel provides no additional documentation.
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 September 1996, completed training, and was awarded military occupational specialty 14S (Avenger Crewmember).
3. The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on 19 June 1997 for failure to report for duty.
4. The record contains 22 negative general counseling forms prepared between 26 March 1997 and 16 June 1997 for infractions including but not limited to:
* failure to pay attention in class
* sleeping in class
* failure to follow instructions
* failure to follow orders
* a lack of personal discipline
* substandard work performance
* lack of proper personal hygiene
* wearing soiled uniform parts
* being out of uniform
* loss of personal equipment including sensitive items
* failure of the physical fitness test
* failure to secure his locker
* leaving his room unsecured
* fighting with his peers
* underage drinking
* insubordination
* failure to be at his place of duty
* failure to report for extra duty
5. On 17 June 1997, the applicant's command initiated separation proceedings for unsatisfactory performance under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 13.
6. On 19 June 1997, the applicant, after consulting with counsel, acknowledged the separation action and waived his right to submit a personal statement.
7. The separation authority approved the discharge and directed the applicant be issued a GD.
8. The applicant was discharged on 27 June 1997 with a GD. He had 9 months and 18 days of creditable service.
9. The service medical records provided show the applicant:
* entered active duty with minimal low frequency hearing loss
* received treatment for an ingrown toenail, a preservice nasal fracture with reconstructive surgery, minor dehydration, depression
* prescribed a trial treatment of Prozac for his depression
10. His separation examination shows the same hearing loss levels noted at the time of entrance and he was found qualified for separation.
11. The VA medical record provided is dated 15 January 2013, 16 years post service. He was described as a weak historian, who spoke softly and presented a sad affect. He reported not wanting to live but never considered killing himself. He was diagnosed with recurrent major depressive disorder, possible alcohol dependence, myotonic muscular dystrophy, and insulin dependent diabetes.
12. There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statutory limit for review.
13. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.
a. Paragraph 3-7a states that an honorable discharge is a separation with honor. The honorable characterization of service is appropriate when the quality of the Soldiers service generally has met the standards of acceptable conduct and performance of duty.
b. Paragraph 3-7b states that a general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.
c. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.
14. 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 physical disability incurred while entitled to basic pay.
15. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states 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 member reasonably may be expected to perform because of his office, rank, grade or rating. The Army must find that a service member is physically unfit to reasonably perform his duties and assign an appropriate disability rating before that service member can be medically separated or retired. Chapter 3 states 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.
DISCUSSION AND CONCLUSIONS:
1. The available service medical records do not indicate any medical condition incurred while entitled to receive basic pay that was so severe as to render the applicant medically unfit for retention on active duty. At the time of the separation physical examination, competent medical authority determined that the applicant was then medically fit for separation. Accordingly, the applicant was separated from active duty for reasons other than physical disability.
2. The applicant's very limited period of service was marred by a significant number of infractions that are well documented by his NJP and 22 negative general counseling statements. These infractions clearly show the applicant did not meet the standards of acceptable conduct and performance of duty for an honorable discharge.
3. The applicant's administrative separation was accomplished in compliance with applicable regulations. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.
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) AR20130003535
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ABCMR Record of Proceedings (cont) AR20130003535
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