BOARD DATE:	  8 July 2014

		DOCKET NUMBER:  AR20130019824 


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 entry-level separation due to misconduct to show he was medically discharged.

2.  The applicant states he has a terminal illness and he wants to see this legacy change prior to his death.

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 6 August 1991.

3.  Evidence shows the applicant received an initial counseling on 10 August 1991.  He received subsequent counseling for poor performance on 1 September in addition to receiving counseling on disobeying an order on 11 September 1991.

4.  On 11 September 1991, he received a mental health evaluation at Community Mental Health Services – Fort McClellan, AL.  The applicant indicated he put down his rifle and refused to train because he had been doing poorly in training since his arrival, particularly with basic rifle marksmanship.  Psychological testing and his reported social history were indicative of a pattern of poor performance socially and occupationally.  Based on his lack of motivation, ongoing adjustment difficulties and his refusal to train, it was recommended he be administratively discharged.

5.  On 17 September 1991, he received a negative counseling from his first sergeant for quitting and for disobeying an order.  He was also counseled by his commander who recommended the applicant be discharged due to his refusal to train.

6.  On 19 September 1991, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful order from a superior commissioned officer to go to training.

7.  On 20 September 1991, the applicant was notified of the initiation of separation action against him for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, paragraph 14-12c.  He was advised of the basis for his contemplated separation and its effects, the rights available to him, and the effects of a waiver of his rights.  He further acknowledged that Department of Veteran Affairs and other benefits normally associated with completion of active service would be affected.  The applicant waived legal counsel and submitted no statement on his behalf.

8.  On 24 September 1991, the separation authority approved the applicant's discharge under Army Regulation 635-200, chapter 14, paragraph 14-12c, and directed that he be given an entry-level separation (Uncharacterized) discharge.  On 30 September 1991, the applicant was discharged accordingly.  The             DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was separated for misconduct (commission of a serious offense) with an uncharacterized characterization of service.  He completed  1 month and 25 days of active military service during this period with no time lost.

9.  The applicant provides no additional evidence and his record contains insufficient evidence to support his contention that he was or should have been discharged due to a medical condition.

10.  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 a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate.

11.  Chapter 3 of Army Regulation 635-200 describes the different types of characterization of service.  It states in pertinent part that an uncharacterized separation is an entry-level separation.  A separation will be described as an entry-level separation if processing is initiated while a member is in entry-level status, except when characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case or when the Secretary of the Army, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.  Entry-level status is defined in part as the first 
180 days of continuous active military service or the first 180 days of continuous active service after a service break of more than 92 days of active service.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 office, grade, rank, or rating.  It provides for medical evaluation boards, 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 chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  When a Soldier has received the maximum benefit of medical treatment for a condition that may render the Soldier unfit for further military service, the medical treatment facility conducts a medical evaluation board (MEB) to determine whether the Soldier meets the medical retention standards of Army Regulation 40-501, chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB).   

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant received NJP under the provisions of Article 15 of the UCMJ for willfully disobeying a lawful order from a superior commissioned officer to go to training.  The applicant refused to train; therefore, he was discharged for misconduct under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c.  He could have received a discharge under other than honorable conditions; however, his character of service was reflected as uncharacterized since he had completed less than 180 days of military service.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant's discharge accurately reflects his military service at that time.

2.  With respect to the applicant's contention that he was discharged or should have been discharged due to medical reasons, there is insufficient evidence in the applicant's record and he provides insufficient evidence to corroborate this claim.  There is no evidence that he underwent an MEB and/or a PEB.  The Army must find that a Soldier 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.    

3.  In light of the foregoing, 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)                                         AR20130019824





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130019824



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1