BOARD DATE:	  14 January 2014

		DOCKET NUMBER:  AR20130005910 


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 upgrade of his general discharge to an honorable discharge or a medical discharge.

2.  The applicant states, in effect, his discharge was unfair because he was unable to perform his duties due to serious injuries he sustained in a car accident that made him appear to be malingering.  His medical records should show that he arrived at his duty station on crutches; however, the chain of command was intent on getting rid of malingers.

3.  The applicant provides a self-authored statement and a copy of his DA Form 2-1 (Personnel Qualification Record).

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 18 October 1976.  He completed his initial training and he was awarded military occupational specialty 55B (Ammunition Storage Specialist).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.

3.  His medical records are not available for review; however, his military personnel record contains a DA Form 2173 (Statement of Medical Examination and Duty Status) that shows on 18 June 1977 the applicant was involved in a car accident wherein he sustained a fracture to his left ankle and minor multiple trauma.  His injuries were determined to be in the line of duty.

4.  His record also shows two instances of misconduct wherein:

* he received a letter of reprimand for failing to report to police call on 
18 July 1978
* he was counseled for fraternization with an Advanced Individual Training (AIT) student on 4 December 1978

5.  The applicant's record further reveals a disciplinary history that includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on three occasions for violating:

* Article 92 by having a visitor of the opposite sex in his barracks room
* Article 86 by being absent without leave (AWOL) from 1 - 5 August 1977
* Article 134 by wrongfully possessing marijuana

6.  On 1 March 1979, the applicant's unit commander notified him of his intent to initiate action to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33b(1), for frequent incidents of a discreditable nature with civil or military authorities; specifically, three Article 15s, a letter of reprimand, and unsatisfactory performance of duties beginning on 12 July 1977.

7.  After having been advised by legal counsel, the applicant requested consideration of his case by a board of officers and indicated he would submit statements in his own behalf.  He further indicated he understood the ramifications of the separation action.

8.  In his statement, dated 15 March 1979, he contends his discharge was unfair because, in effect, his misconduct happened over a period of time.  Further, he had never been in trouble until his assignment to the Ammunition Section where 


he had been in more trouble than ever before in his life.  His chain of command constantly cursed him, belittled him, and prevented him from attending school.  He contends that he asked for a discharge of any type after receiving the first Article 15 but he was turned down.  He believed that because he had only
7 months left in the service and he had been a good Soldier for the majority of his period of service he deserved an honorable discharge.

9.  On 26 March 1979, the commanding general approved a waiver of further rehabilitation and counseling attempts.

10.  On 29 March 1979, the applicant’s unit commander informed him that he was recommending his elimination from service under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-33b(1).

11.  On an unknown date, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  Subsequent to this counseling, the applicant waived consideration of his case by an administrative separation board and personal appearance before a board of officers.  He further elected to submit a statement in his own behalf.

12.  In his second statement he contends his discharge was unfair because it had been over a year since he received his first two Article 15s.  He admitted he wanted to be discharged but he did not deserve the type of discharge his chain of command intended to give him.  He felt the Army was wasting money keeping a man who really could not make and would not meet Army standards such as him.  He refused to stay under the current conditions.  Further, he had a family to support and needed to help his wife find another job.

13.  On 6 April 1979, the separation authority, a major general, approved the applicant's separation under the provisions of Army Regulation 635-200, paragraph 14-33b(1), with a General Discharge Certificate.  On 12 April 1979, the applicant was discharged accordingly.

14.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in the rank/grade of PFC/E-3 under the provisions of Army Regulation 635-200, paragraph 14-33b(1), with a separation program designator code of JKA (misconduct – frequent incidents of a discreditable nature with civil or military authorities).  His service was characterized as under honorable conditions.


15.  The applicant provided a statement in conjunction with his application to the Board in which he contends that shortly after arriving at his permanent duty station, Fort Riley, KS he stopped a man from cutting a young lady by taking the knife away.  The next night this same individual entered his barracks room while he was sleeping and cut him across the throat and abdomen.  He was treated at the hospital and granted 30 days of medical leave to recuperate at home.  He was anxious to get home so he attempted to drive home not knowing he had lost so much blood and fell asleep behind the wheel of the car.  He was involved in a head-on collision and he was told he would never walk or see again.  He stayed in a cast for one year and lost his front teeth.  Needless to say he was eventually able to walk and see again.  He heroically reported to Fort Jackson, SC to start his duties with a cast on his leg, crutches under his arm, and no teeth at the age of seventeen.  Everyone laughed and joked about him.  His commander was angry with him because he could not perform his duties.  He began to get in trouble because of his medical condition and problems.  He just wanted to fit in and feel like a Soldier again but unfortunately, he was struck down with Hepatitis and hospitalized for another two months.

16.  His military personnel record is void of any documentation that shows he sustained injuries that warranted referral to a medical board.

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, 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.  It provides for medical evaluation boards (MEBs) that are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation
40-501 (Standards of Medical fitness).

18.  Paragraph 2-1 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.  To ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation
40-501, chapter 3.  These standards include guidelines for applying them to fitness decisions in individual cases.  These guidelines are used to refer Soldiers to an MEB.
19.  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, commission of a serious offense (one for which a punitive discharge is warranted and authorized), 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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's requests for an upgrade of his under honorable conditions (general) discharge to an honorable conditions discharge or a medical discharge was carefully considered.

2.  His record reveals a history of misconduct, as evidenced by his three records of NJP, his letter of reprimand, and counseling record.  Based on his overall record of indiscipline, his service was not consistent with and clearly did not meet Army standards of acceptable personal conduct and performance of duty by military personnel.  Therefore, he is not entitled to an honorable discharge.

3.  With respect to a medical discharge, the applicant contends that he was injured in a motor vehicle accident and was unable to perform his duties to standard that led to continued harassment by members within his chain of command.  The record shows the applicant sustained a fracture to his left ankle and minor multiple trauma as the result of a car accident.  There is no evidence of record and the applicant provides no evidence to show he sustained an injury or a medical condition that rendered him unfit for military service.


4.  Absent evidence to the contrary, his separation processing was accomplished in accordance with the applicable regulation and the requirements of law and regulation were met and his rights were fully protected throughout the separation process.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a medical discharge.

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)                                         AR20130005910



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ABCMR Record of Proceedings (cont)                                         AR20130005910



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