IN THE CASE OF:	  

		BOARD DATE:  6 February 2014

		DOCKET NUMBER:  AR20130009687 


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, an upgrade of his general discharge to an honorable discharge by reason of disability.

2.  The applicant states his discharge should be upgraded because he had medical problems, a back injury, while serving on active duty.  He was under medical hold and was unable to perform his duties.

3.  The applicant provides no additional 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 enlisted in the Regular Army on 18 August 1989 and he held military occupational specialty 94B (Food Service Specialist).  On 1 June 2009, he was assigned to the 2nd Battalion, 2nd Infantry Regiment, Fort Lewis, WA.

3.  Between 1 June and 5 November 1990 he was frequently counseled by various members of his chain of command for his repeatedly substandard performance of duty, failure to report at the prescribed time, being disrespectful to noncommissioned officers (NCOs), substandard personal conduct, inappropriate behavior, substandard military appearance, and lack of initiative.  

4.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows on:

* 19 September 1990, for one specification each of being derelict in the performance of his duties, unlawfully pushing another Soldier into a wall, and wrongfully communicating a threat to another Soldier that he would kill him
* 21 November 1990, for one specification each of unlawfully striking another Soldier in the head with his fist and being disrespectful in language to an NCO

5.  On 18 December 1990, at his immediate commander's request, he underwent a mental status evaluation.  The examining physician noted his behavior and though content was normal, he was fully alert, and his thought process was clear.  He was psychiatrically cleared for any action deemed appropriate by the command.  The examining physician stated his future performance would resemble his past performance and retention would likely create management problems.  He recommended the applicant for administrative separation.

6.  On 3 January 1991, the applicant completed a Standard Form 93 (Report of Medical History) wherein he stated he was in good health but he had swollen or painful joints and recurrent back pain.  He further stated:

	a.  During December [1990] he had a lot of pain in his left knee and went to physical therapy.  Sometimes he felt unbalanced on his left knee, it sometimes swelled, and he had pain in his left knee when it got cold.

	b.  He pulled a muscle in his lower back while at Fort Lee, VA and went to physical therapy while there.  He had been seen by many orthopedic doctors, the last one while at Fort Lewis, WA.  He still had pain [in his lower back] and it got worse at times.  He took medication once a day for the pain.  

7.  On 3 January 1991, he underwent a medical examination for separation processing.  The examining physician noted that he (the applicant) had no abnormalities, he exceeded the Army height and weight requirements, and he was found qualified for separation. 

8.  On 28 January 1991, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for misconduct - patterns of misconduct.  The commander stated he was initiating the action because he had established a pattern of misconduct and he was recommending he receive a general, under honorable conditions discharge.

9.  On 28 January 1991, he consulted with legal counsel and he was advised of the basis for the contemplated separation action, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures and rights available to him.  He declined to submit a statement on his own behalf.

10.  On 31 January 1991, his senior commander recommended approval of the discharge action with the issuance of a general, under honorable conditions discharge.

11.  On 11 February 1991, the separation authority approved the applicant's discharge action and directed the issuance of a General Discharge Certificate.  On 20 February 1991, he was discharged accordingly.

12.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b with an under honorable conditions characterization of service.  He completed 1 year, 6 months, and 3 days of net active service.

13.  His available records are void of any evidence that shows he was ever diagnosed with any injury/condition while serving on active duty that resulted in injuries that prevented him from performing his duties and would require referral to a medical evaluation board (MEB).

14.  There is no evidence in the available records that shows he ever received a permanent profile rating of "3" that would require referral to an MEB, or that he was ever in a medical hold status.

15.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.
16.  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.  Paragraph 14-12b provided for separation for a pattern of misconduct.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such was merited by the Soldier's overall record.

17.  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.

18.  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.  It states medical evaluation boards (MEB) 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 qualification for retention based on the criteria in Army Regulation 40-501, chapter 3.

19.  Paragraph 3-1 of Army Regulation 635-40 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was frequently counseled for his repeatedly substandard performance of duty, failure to report at the prescribed time, being disrespectful to NCOs, substandard personal conduct and military appearance, inappropriate behavior, and lack of initiative.  In addition, he received NJP for being derelict in the performance of his duties, unlawfully pushing another Soldier, wrongfully communicating a threat, unlawfully striking another Soldier, and being disrespectful in language to an NCO.  Accordingly, his immediate commander initiated separation action against him for a misconduct - a pattern of misconduct.
2.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  

3.  Although he may have suffered from back and/or knee pain while serving on active duty, the evidence of record does not show and the applicant has not provided any evidence that shows he was ever diagnosed with or treated for any injury/condition while serving on active duty that prevented him from performing his duties and would require referral to an MEB.  There is no evidence in the available records that shows he ever received a permanent profile rating of "3" that would require referral to an MEB.  The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.

4.  Based on his overall record, it is clear the applicant's service did not meet the standards of acceptable conduct for Army personnel that would warrant an honorable discharge.  

5.  In view of the foregoing, he is not entitled to 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)                                         AR20130009687





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ABCMR Record of Proceedings (cont)                                         AR20130009687



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