IN THE CASE OF:  	  

		BOARD DATE:  13 January 2015  	  

		DOCKET NUMBER:  AR20140004356 


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 record to show he was discharged for physical disability.   

2.  The applicant states he did not know he had a chronic illness at the time of his discharge.  A few years later, he was diagnosed with multiple sclerosis (MS).  He has been disabled for about 20 years, and he currently receives social security disability compensation.  He believes his illness played a major role in his actions.  At the time he really believed he needed to get out of the Army.  He often still feels "medically down" as he did in the early 1980s.  Many years ago, not much was known about MS, and he believes it is the reason he could not maintain his chosen career at the time.  He is aware that he went about getting out the wrong way, and he feels remorse that he did not become the man he wanted to be back then.  

3.  The applicant provides correspondence from the Social Security Administration, his DD Form 214 (Certificate of Release or Discharge from Active Duty), and a civilian medical record. 

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 7 July 1980, the applicant enlisted in the Regular Army.  He completed initial entry training and was awarded military occupational specialty 11B (Infantryman).  

3.  On 1 May 1981, he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice, for absenting himself from his place of duty on 16 and 17 April 1981.  

4.  On 30 September 1981, he was convicted by a summary court-martial of being absent without leave from 4 to 24 September 1981.  He was sentenced to confinement at hard labor for 21 days, reduction to pay grade E-1, and forfeiture of pay in the amount of $250.00.  

5.  On 14 October 1981, he was assigned to the U.S. Army Retraining Brigade (USARB), Fort Riley, KS.  

6.  On 11 December 1981, his commander verified that he had informed the applicant of pending discharge proceedings for misconduct and that he had informed the applicant of his rights.  On the same date, the applicant acknowledged that he understood the commander's explanation of the reason why he was being recommended for discharge as well as his rights and the procedures involved.  

7.  On 11 December 1981, the applicant's commander requested he be discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-33, due to frequent involvement in incidents of a discreditable nature  

8.  On 14 December 1981, Headquarters, 1st Battalion, USARB, issued Summary Court-Martial Order Number 60.  The order shows the applicant was found guilty of stealing from another Soldier three money orders of $200.00 each, one $50.00 bill, two $20.00 bills, one $5.00 bill, and two $1.00 bills.  He was sentenced to confinement at hard labor for 30 days and forfeiture of pay in the amount of $367.00 for 1 month.  

9.  On 4 January 1982, he consulted with counsel and was advised of the basis for his contemplated separation and its effects, of the rights available to him, and of the effect of a waiver of his rights.  

10.  After consulting with counsel, he waived consideration of his case by a board of officers and personal appearance before a board of officers.  He elected not to submit statements in his own behalf, and he waived counsel.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge were to be issued to him.  He further acknowledged that, as the result of issuance of a discharge under conditions other than honorable, he might be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.  

11.  On 5 January 1982, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 14, and directed that he be furnished an Under Other than Honorable Conditions Discharge Certificate.  

12.  A DA Form 3081-R (Periodic Medical Examination), dated 22 January 1982, shows he waived a medical examination in conjunction with separation.  He indicated there had been no significant change in his medical condition since a medical examination on 4 December 1981. 

13.  On 25 January 1982, he was discharged in accordance with the separation authority's decision.

14.  He provides a civilian medical record created in 1996 indicating he had been diagnosed with multiple sclerosis.  A handwritten note on the record states "first diagnosis 1996."

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  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 is normally appropriate for a Soldier discharged under this chapter.  

	b.  If it appeared to an examining medical officer that a Soldier being considered for elimination under the provisions of chapter 14 did not meet retention standards, the Soldier would be referred to a medical board.  The board proceedings were to be provided to the general court-martial convening authority who would direct processing through disability channels if it was determined that the Soldier's disability was the cause or substantial contributing cause of the misconduct.  

16.  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 or her office, grade, rank, or rating.  Separation or retirement by reason of disability requires processing through the PDES.  The regulation states 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for correction of his record to show he was discharged for physical disability.  

2.  He underwent a medical examination shortly before his commander recommended his separation, and there is no indication that this examination revealed a medical condition that warranted his referral to the PDES.  Further, there is no evidence indicating his misconduct was caused by a disability.  The fact that he was diagnosed with MS 14 years after his discharge is not evidence of error in his discharge processing.  

3.  The evidence of record fully supports the type of discharge the applicant received.  There is no evidentiary basis upon which to grant 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)                                         AR20140004356





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ABCMR Record of Proceedings (cont)                                         AR20140004356



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