BOARD DATE:	  16 January 2014

		DOCKET NUMBER:  AR20130007683 


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, in effect, correction of his records to show he was medically discharged vice discharged under other than honorable conditions for misconduct. 

2.  The applicant states based on the service-connected disability, effective 10 October 2010, for post-traumatic stress disorder (PTSD), his condition is presumed to be service-connected.  His PTSD was caused by his incarceration and the risk of being homeless. 

3.  The applicant did not provide any evidence. 

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's records show he enlisted in the Regular Army on 26 August 1980 and he held military occupational specialty 19E (Armor Crewman).  He was assigned to Fort Hood, TX.  

3.  On 24 November 1980, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being disorderly in public and for being disrespectful in language.  

4.  On 6 April 1981, he departed his unit in an absent without leave (AWOL) status but he returned to military control on 16 April 1981.  

5.  On 6 October 1981, he was convicted by a special court-martial of:

* one specification of absenting himself from his unit
* two specifications of behaving himself with disrespect in language 
* two specifications of assaulting other Soldiers
* one specification of communicating a threat to kill his lieutenant
* one specification of being drunk and disorderly
* one specification of being disrespectful
* one specification of offering violence against a commissioned officer
* one specification of disobeying a lawful  command

6.  The court sentenced him to reduction to the lowest enlisted grade, a forfeiture of pay for 3 months, and confinement at hard labor for 3 months.  The convening authority approved his sentence on 4 November 1981.  

7.  On 23 June 1982, he again accepted NJP under the provisions of Article 15 of the UCMJ for willfully damaging military property.  

8.  On 21 June 1982, the applicant underwent a separation physical at Fort Riley, KS.  The examining military doctor found him fully qualified for retention.  

9.  On 28 June 1982, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) by reason of misconduct - frequent incidents of a discreditable nature with civil or military authorities.  The commander stated that the discharge was recommended because of increasing episodes of misconduct and irresponsible behavior, to include AWOL, fighting, and improper behavior in front of patients.  The applicant had been reassigned as a rehabilitative transfer to Fort Riley, KS, but all efforts failed to initiate any change in his behavior. 

10.  On 28 June 1982, the applicant acknowledged receipt of the commander's intent to separate him for misconduct.  He consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  He waived consideration of his case by a separation board, waived personal appearance before a separation board, and elected not to submit a statement on his own behalf.  The applicant indicated he understood:

	a.  he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him and

	b.  as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State laws.

11.  Subsequent to this acknowledgement, the applicant's immediate commander formally initiated separation action against the applicant in accordance with chapter 14 of Army Regulation 635-200 for misconduct.  The immediate commander remarked that the applicant's performance had been poor and that rehabilitation efforts would not have been beneficial.

12.  On 30 June and 8 July 1982, his intermediate and senior commanders recommended approval of the discharge action and a waiver of any further counseling or rehabilitative efforts. 

13.  On 30 July 1982, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct and directed issuance of an Under Other Than Honorable Conditions Discharge Certificate.  The applicant was accordingly discharged on 12 August 1982.  

14.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct for frequent involvement in incidents of a discreditable nature with civil and/or military authorities, with service characterized as under other than honorable conditions.  This form further shows he completed 1 year, 10 months, and 14 days of active service and he had lost time from 5 to 15 April 1981, 19 June 1981, and 6 to 27 October 1981. 

15.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 
16.  His available medical records do not indicate:

* he suffered from an illness or an injury that did not meet retention standards of Army Regulation 40-501 (Standards of Medical Fitness) 
* he was issued a permanent profile that restricted his ability to perform the duties required of his former grade and military specialty
* he was diagnosed by medical authorities of a mental or physical disability 
* he suffered an injury or an illness that would have warranted his referral to the Physical Disability Evaluation System (PDES)

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories at the time included frequent incidents of a discreditable nature with civil or military authorities, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged for acts or patterns of misconduct.  

18.  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.

19.  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.  

20.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the 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 office, grade, rank, or rating.  It provides for medical evaluation boards (MEB) which 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, chapter 3.  

	a.  If an MEB determines a Soldier does not meet retention standards, the case will be referred to a physical evaluation board (PEB).  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  It also investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

	b.  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.

	c.  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.

21.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record of service reveals an extensive history of misconduct that included multiple instances of AWOL, two instances of NJP, a court-martial conviction, a failed rehabilitative transfer, and a history of negative counseling.  He demonstrated little desire to perform his duties to standard.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

2.  His discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  His repeated misconduct and failure to respond to counseling by members of his chain of command diminished the quality of his service.

3.  There is no evidence in his records that shows he was physically unfit at the time of his discharge.  A Soldier is considered unfit when the evidence establishes that the Soldier is unable to reasonably perform the duties of his or her office, grade, rank, or rating.  The available evidence shows he was fully able to perform the duties of his grade and/or military occupational specialty and fully qualified for separation.  Additionally, he underwent a separation physical prior to discharge and he was found medically fit. 

4.  Disability compensation is not an automatic 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.  Here, the applicant's active duty service was primarily interrupted by his continued misconduct and his failure to respond to counseling and rehabilitative efforts.

5.  The applicant failed to show through the evidence submitted or the evidence of record that he should have been processed for separation due to physical disability.  In view of the circumstances in this case, he is not entitled to 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)                                         AR20130007683



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ABCMR Record of Proceedings (cont)                                         AR20130007683



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