BOARD DATE:	  19 December 2013

		DOCKET NUMBER:  AR20130005049 


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 correction of her record to show she was discharged for medical reasons.

2.  The applicant states she has been suffering from the same injuries since her military service:  anxiety, depression, and degenerative disc disease in her lower back, due to military training.  Her conditions have worsened.  She is unable to work and is confined to a wheel chair.  She states she was discharged improperly and she would like to receive a service-connected disability rating for her injuries.

3.  She provides a page from her service medical records and a letter regarding her enrollment in TRICARE Prime.

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.  On 18 September 2000, the applicant enlisted in the Regular Army as a specialist (SPC)/E-4.  She completed initial entry training, and she was awarded military occupational specialty 71L (Administrative Specialist).

3.  She was counseled during:

* September 2002 for failing to be at her place of duty and leaving formation without being released
* December 2002 for questioning the authority of a noncommissioned officer (NCO) and failing to follow orders

4.  On 13 December 2002, she accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failure to go at the time prescribed to her appointed place of duty.  Her punishment (14 days of restriction and extra duty) was suspended for 60 days.

5.  She was counseled during January 2003 for:

* showing disrespect toward an NCO
* missing formation
* insubordinate conduct toward an NCO
* failure to follow the orders of an NCO
* falsely accusing an NCO of assaulting her

6.  Effective 5 January 2003, she was reduced to private first class/E-3.

7.  On 11 February 2003, suspension of the NJP imposed on 13 December 2002 was vacated and the unexecuted portion of the punishment was ordered to be executed.

8.  On 25 February 2003, she was counseled for disobeying a direct order, showing disrespect toward an NCO, and lying to an NCO.

9.  On 7 March 2003, she accepted NJP for failing to go at the time prescribed to her appointed place of duty.  

10.  On 21 March 2003, her commander informed the applicant that he was initiating action to separate her under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b, due to patterns of misconduct.  Her commander stated the basis for the action was the applicant's failure to follow orders, failure to repair, and failure to comply with Army standards.  He informed her he was recommending she receive a general discharge (GD).  The applicant acknowledged receipt of the notification.

11.  On 24 March 2003, she consulted with counsel who advised her of the basis for her contemplated separation and its effects, the rights available to her, and her ability to waive her rights.  

12.  After consulting with counsel, she elected to submit statements in her own behalf.  She acknowledged she could expect to encounter substantial prejudice in civilian life if a GD were issued to her and that as a result of a GD she could be ineligible for benefits as a veteran under Federal and State laws.  

13.  In a memorandum for the separation authority, dated 24 March 2003, she stated she believed she should receive an honorable discharge.  She stated she had obstacles to overcome since she was assigned to her unit, and that the challenges she faced were personality conflicts.  She summarized her service and noted her participation in the church choir and that, while serving in Korea, she taught Korean soldiers American English.  She indicated her future plans included teaching junior high school.

14.  Her commander's recommendation to separate her indicates a medical status evaluation and a mental examination were attached.  These documents are not included among the available records.

15.  The separation authority approved her discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, for patterns of misconduct and directed she receive a GD.

16.  On 28 March 2003, she was discharged as directed.  

17.  Her service medical records are not contained in her Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File).  The documents available in her AMHRR show no evidence that she was injured during her service or that she was diagnosed with anxiety and depression.  

18.  On 5 December 2007, the President, Army Discharge Review Board, notified her that her request for a change in the character of and/or reason for discharge was denied.


19.  She provides a page from her service medical records showing she complained of lower back pain.  She indicated her back had been hurting on and off for a month.  She was referred for an X-ray.  The document does not show the X-ray results.  The date of this document is illegible.

20.  She also provides a letter, dated 2 May 2002, from TRICARE Europe, Department of Defense.  The letter shows that, as part of her enrollment in TRICARE Prime, she had completed a patient questionnaire to be used to develop a comprehensive plan of care.  Analysis of her questionnaire indicated she might benefit from counseling services for stress and that she had reported a chronic bone, joint, back, or muscle problem.

21.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  

	b.  Section VI (Medical Processing) requires that a Soldier being processed for separation under chapter 14 receive a medical examination.  This section also requires a mental status evaluation by a psychologist or master-level licensed clinical social worker.  

	c.  Section VI further provides that when the medical treatment facility commander or attending medical officer determines a Soldier being processed for administrative separation under chapter 14 does not meet medical fitness standards for retention, he/she will refer the Soldier to a Medical Evaluation Board (MEB) in accordance with Army Regulation 40-400 (Patient Administration).  The administrative separation proceedings will continue, but final action by the separation authority will not be taken, pending the results of the MEB.


22.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for correction of her record to show she was discharged for medical reasons.

2.  The record shows the applicant's GD for misconduct was completed in accordance with the governing law and regulations and that her rights were protected throughout the separation process.  

3.  The record indicates she underwent a medical examination and a mental status evaluation in conjunction with her discharge processing.  In the absence of evidence showing otherwise, it must be presumed that neither the medical examination nor the mental status evaluation revealed a condition not meeting medical retention standards that required referral to an MEB.  There is no evidence indicating she had a medical condition of such severity that it would have warranted processing her through the PDES during her period of military service.

4.  She states she would like to receive a service-connected disability rating for her injuries.  This is a matter she may take up with the Department of Veterans Affairs (VA).  The VA is responsible for determining if an eligible individual's medical conditions are service connected and for providing any associated benefits.  

5.  In view of the foregoing, there is no basis for granting the requested relief.  

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)                                         AR20130005049



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ABCMR Record of Proceedings (cont)                                         AR20130005049



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