IN THE CASE OF:	  

		BOARD DATE:  3 April 2014

		DOCKET NUMBER:  AR20130013382 


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 his military records to show he was discharged due to medical reasons.

2.  The applicant states he believes his service-connected disabilities caused his military performance to be unsatisfactory.  He provided a 2-sided, hand-written letter that is difficult to read and understand.  It appears to say that while assigned in the Federal Republic of Germany (FRG) he was abused by the members of his unit, who beat him.  He contends that he had to take a chain for protection when showering and when going off-post.  He was hit in the head and taken to the hospital.  This injury changed the way he thought and acted.

3.  The applicant provides copies of:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 7 June 1982, with a DD Form 215 (Correction of DD Form 214) issued on13 October 2000
* DD Form 214 ending on 13 December 1990
* Record of Monthly Counseling for 10 March to 10 April 1990
* Record of Monthly Counseling for 11 April to 10 May 1990
* Service medical records for the period 28 March 1987 to 29 August 1990
* Department of Veterans Affairs (VA) Medical Records for the period 
15 March 1991 to 31 July 2012



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 15 June 1979, the applicant enlisted in the Regular Army (RA).  He was awarded military occupational specialty 12C (Bridge Crewman).  He served in the FRG from 25 November 1980 to 7 June 1982, when he was released from active duty and transferred to the U.S. Army Reserve (Reinforcement).  He had completed 2 years, 11 months, and 23 days of creditable active service during this period.

3.  The applicant's service medical records for the period June 1979 to June 1982 are not available for review.

4.  On 2 January 1987, the applicant again enlisted in the RA.  He completed training as a wheeled vehicle repairman.

5.  A DA Form 3349 (Physical Profile), dated in May 1989, indicates the applicant had been diagnosed with chronic bilateral Achilles Tendonitis.  He was given a permanent profile for lower extremities and restricted to running at his own pace up to 2 miles, with unlimited walking, bicycling and swimming.  He could perform all of the events for the physical fitness test except the 2-mile run.

6.  A DA Form 4126 (Bar to Reenlistment Certificate) initiated on 30 July 1990 shows the applicant was counseled five times between 5 February and 5 July 1990 for marginal performance.  It was also noted that his pay had been garnished in May 1988 and as of 23 May 1990 he was $2,400.00 in arrears.  He showed a slow grade progression resulting from a pattern of marginal performance reflecting no potential for future service.  On 21 August 1990, the certificate was approved.  The applicant indicated he would submit an appeal.  There is no evidence showing that he did so.


7.  On or about 29 November 1990, the commander notified the applicant of his intention to initiate action to separate him from the military under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13, for unsatisfactory performance.  The reasons for this action were his numerous counselings for substandard duty performance.

8.  The applicant acknowledged the commander's intent and waived consideration of his case by a board of officers.  He indicated he would submit a statement in his own behalf; however, it is not available.

9.  On an unknown date the commander recommended the applicant be separated due to unsatisfactory performance.  The commander recommended that he receive an honorable characterization of service.

10.  The appropriate authority approved the recommendation and directed the applicant receive an honorable characterization of service.

11.  The applicant's DD Form 214 ending on 13 December 1990 indicates:

	a.  he was discharged with an honorable characterization of service under the provisions of chapter 13, Army Regulation 635-200 for unsatisfactory performance; and

	b.  he was assigned a separation program designator (SPD) code of JHJ and a reentry code of 3.

12.  A review of the applicant's service medical records as provided by the applicant, dated between 1987 and 1990, failed to reveal any medical conditions that would possibly impact his mental abilities.

13.  On 16 November 1992, the Army Discharge Review Board (ADRB) considered the applicant's request to change the reason and authority for his discharge.  The ADRB found that the applicant's unsatisfactory performance was documented in the record by a number of counseling statements from February through August 1990.  The counseling statements reflected that the applicant had failed his skill qualification testing.  He would not follow instructions and he was not recommended for promotion because of his substandard performance.  Further, the record reflected the applicant was having debt problems.  His pay was garnished for child support and he was counseled regarding nonpayment of alimony to his ex-wife.  Accordingly, the ADRB determined that the applicant's discharge was proper and equitable and denied his request.


14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides that commanders will separate a member under this chapter when, in the commander’s judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

15.  Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered physically unfit for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

16.  Title 10, U.S. Code:

	a.  chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of a disability incurred while entitled to basic pay;

	b.  section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling; and

	c.  section 1203, provides for the physical disability separation of a member who has an impairment rated of less than 30-percent disabling.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he was discharged due to medical reasons because he believes his service connected disabilities caused his military performance to be unsatisfactory.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.
4.  In the absence of evidence to the contrary, it is presumed that the applicant met the required medical standards when he initially enlisted in the RA in 1979.  Furthermore, it is presumed that he met those same qualifications at the time of his enlistment in 1987.  A review of his service medical records for the period ending in 1990 failed to reveal any medical condition that would have warranted a discharge due to a physical or mental disability.  There is no indication that he was physically unfit to perform his duties.

5.  An award of service connection by the VA does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA has neither the authority nor the responsibility for determining medical unfitness for military duty.  The VA awards ratings because a medical condition is related to service "service-connected" and affects the individual's civilian employability.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  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 he or she can be medically retired or separated.

6.  In view of the above, the applicant's request should be denied.

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)                                         AR20130013382



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ABCMR Record of Proceedings (cont)                                         AR20130013382



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