BOARD DATE: 6 January 2015
DOCKET NUMBER: AR20140007583
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 discharge under other than honorable conditions from the U.S. Army Reserve (USAR) to show he was honorably discharged by reason of physical disability. He also requests restoration of his rank to private first class (PFC)/E-3.
2. The applicant states:
* he was originally injured in basic training that caused a permanent disability and affects his quality of life to this day
* he was separated from the USAR for unsatisfactory reporting due to an injury he sustained from a motor vehicle accident for which he had been medically released from duty
3. The applicant provides:
* medical records
* DA Form 3349 (Physical Profile)
* 11 DD Forms 689 (Individual Sick Slip)
* separation orders
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the USAR on 9 December 2008 for a period of 8 years. His Reserve Annex to his enlistment contract informed him that he must keep his commander advised of his current mailing address, where he will received official correspondence, and that he must reply to and comply with all official orders and correspondence that he may receive. It also informed him that if he failed to participate satisfactorily he could be declared an unsatisfactory participant and could be subject to separation from the Selected Reserve or the Ready Reserve either by reassignment or discharged, which may result in a pay grade reduction and an other than honorable characterization of his military service. He attained the rank of PFC.
2. He provided a DA Form 3349, dated 9 December 2009, which shows he was issued a temporary physical profile rating of 3 for lower extremities due to hip pain.
3. He provided medical documentation, dated January 2010, which shows he treated for an abscess on his right buttocks.
4. In April 2012, he was notified via mail of his pending USAR discharge for unsatisfactory participation under the provisions of Army Regulation 135-178 (Separation of Enlisted Personnel), chapter 13. The memorandum states the reason for the proposed action was his unexcused absence from nine or more unit training assemblies or his absence from extended combat training.
5. His notification packet was returned to his unit unopened. The envelope was marked "Not Deliverable as Addressed."
6. Headquarters, 88th Regional Support Command, Orders 12-193-00033, dated 11 July 2012, show he was reduced from PFC to private one (PV1) effective 11 July 2012 and he was discharged from the USAR on 18 July 2012 under the provisions of Army Regulation 135-178. His character of service was under other than honorable conditions.
7. Army Regulation 135-178 provides for the separation of enlisted personnel of the USAR and Army National Guard.
a. Chapter 13 applies to unsatisfactory participation in the Ready Reserve. The characterization of service normally will be under other than honorable conditions.
b. Paragraph 2-9a provides that an honorable characterization of service is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for military personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.
c. Paragraph 2-9b provides that a general characterization of service is appropriate if a Soldier's service has been honest and faithful. Characterization of service as general under honorable conditions is warranted when significant negative aspects of the Soldier's conduct or performance of duty outweigh positive aspects of the Soldier's military record.
8. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. It states that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.
9. Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his/her office, rank, grade, or rating because of disability incurred while entitled to basic pay.
DISCUSSION AND CONCLUSIONS:
1. Although the applicant contends he should have been honorably discharged by reason of physical disability, there is no evidence of record and he provided no evidence which shows he was unable to perform his military duties at the time of his discharge from the USAR on 18 July 2012. Therefore, there is insufficient evidence to show he was eligible for physical disability processing and there is no basis for a physical disability discharge.
2. The evidence of record shows he was discharged under other than honorable conditions from the USAR in the rank of PV1 for unsatisfactory participation. His record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, there is insufficient evidence on which to reinstate his rank to PFC.
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 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) AR20140007583
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