IN THE CASE OF:	  

		BOARD DATE:	  12 March 2014

		DOCKET NUMBER:  AR20130009463 


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 honorable discharge be changed to a medical discharge.  He also requests his rank be adjusted to specialist (SPC)/E-4.  

2.  He states:

	a.  he was discharged under honorable conditions and it was upgraded to honorable 6 months later.

	b.  he was originally supposed to be medically discharged due to failed operations on his knees.  He was erroneously demoted and discharged prior to the medical process completion.

	c.  he is seeking to have his DD Form 214 (Certificate of Release or Discharge from Active Duty) upgraded to include his disability so his Montgomery GI Bill benefits can cover 100 percent tuition in his planned master's degree.  

	d.  he was supposed to be enrolled for graduate courses while on active duty at the University of North Carolina, Charlotte, NC.

	e.  he is listed at 60 percent disabled and is seeking to attend graduate school online via Academy of Arts.  At the time he entered the military, he held a Bachelors of Science Degree in Agricultural Engineering from North Carolina 
A and T State University.  


3.  He provides his DD Form 214.

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 9 August 2000 for a period of 
4 years.  

3.  His discharge packet is not available.  However, an OSA Form 172 (Military Review Boards - Case Report and Directive) shows in:

	a.  Part III (Service History), Section A (Period of Service Under Review), paragraph 3, his highest grade achieved is shown as E-4.  The date he was promoted to this pay grade is not available.  

	b.  Part III, Section A, paragraph 8, the entry "Applicant indicates that he received a Field Grade Article 15 for failing to go."  The Article 15 is not present in his record.

	c.  Part IV (Prehearing Review), Section A (Analyst's Assessment), the entry "The applicant submitted evidence showing that he was discharged for a pattern of misconduct for failing to be at his appointed place of duty and for dishonorably failing to pay a debt ($7.00).  The evidence also shows that the applicant was recommended for a medical separation prior to initiation of his administrative separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14.

4.  On 15 December 2003, he was discharged under the provisions of Army Regulation 635-200, chapter 14 by reason of misconduct - pattern of misconduct with issuance of a general, under honorable conditions discharge.  He completed 3 years, 4 months, and 7 days of creditable active service.

5.  His DD Form 214 shows he was discharged in the rank and pay grade of private first class/E-3 with an effective date of pay grade of 17 April 2003.  

6.  On 21 January 2005, the Army Discharge Review Board (ADRB) upgraded his general, under honorable conditions discharge to fully honorable.  The ADRB determined the reason for discharge was proper and equitable and did not change it.  

7.  His service record is void of and he did not provide any medical documentation.  

8.  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 include minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absences without leave.  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 (UOTHC) is normally considered appropriate.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness must be of such a degree that a Soldier is unable to perform the duties of his/her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his/her employment on active duty.

10.  Army Regulation 635-40, paragraph 4-3 states 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 UOTHC.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's OSA Form 172 shows he was recommended for a medical separation prior to initiation of his administrative separation under the provisions of Army Regulation 635-200, chapter 14.  

2.  Based on the governing regulation, 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 UOTHC.  At the time in question, the type of discharge (UOTHC) the applicant was subject to rendered him ineligible for referral to the Physical Disability Evaluation System.

3.  The applicant states he is seeking upgrade of his DD Form 214 so his Montgomery GI Bill benefits can over 100 percent tuition.  However, the ABCMR does not amend/or correct military records solely for the purpose of making the applicant eligible for educational benefits.   

4.  His DD Form 214 shows he was discharged for misconduct with issuance of a general, under honorable conditions discharge.  The ADRB later upgraded his characterization of service to fully honorable; however, the reason for discharge was not changed.  

5.  In the absence of evidence to the contrary, it is presumed the applicant's administrative discharge proceedings under the provisions of Army Regulation 635-200, paragraph 14 for misconduct were conducted in accordance with law and regulations applicable at the time. 

6.  He has not presented sufficient evidence to show his discharge under Army Regulation 635-200, chapter 14 was in error or unjust or that his discharge should be changed a medical discharge.

7.  Evidence of record shows his highest grade held on active duty was E-4.  The date of his promotion is not available.  However, his DD Form 214 shows he held the rank of private first class/E-3 at the time of his discharge.  The effective date of pay grade E-3 is shown as 17 April 2003.  The available evidence shows he received a field grade Article 15, and it is reasonable to believe that his reduction was the result of this Article 15.  His service record is void of evidence and he has not provided any evidence to confirm he held the rank of SPC/E-4 when he was discharged on 15 December 2003.

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)                                         AR20130009463





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ABCMR Record of Proceedings (cont)                                         AR20130009463



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