BOARD DATE:	  19 May 2015

		DOCKET NUMBER:  AR20140016715 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect the narrative reason for separation as physical disability without severance pay in lieu of administrative discharge for unsatisfactory performance and an upgrade of his character of service from general under honorable conditions to honorable.

2.  The applicant states:

* his discharge is unjust because he was deemed to have unsatisfactory performance without full consideration being given to every reason he was not "war ready" at the time
* he was injured during a field training exercise while performing duties as an ammunition handler
* the doctor at the infirmary who evaluated his injury shows it warranted treatment
* his company commander did not deem him able to perform his duties as an ammunition handler after his injury
* his company commander did not take his back injury into consideration when determining the type of discharge he should be given
* he was told he was being discharged under honorable conditions which seemed proper to him at the time
* he did not understand his options at the time of his discharge and he did not solicit the medical help he needed once he became a civilian
* he was unaware that Department of Veterans Affairs (VA) services were available to him
* only 2 years ago he filed a claim with the VA and they granted him service connection for lumbosacral (lower back) strain
* due to this back injury he was not able to perform to standard
* since his discharge from the Army, the decisions he made left him with fewer than 3 years of freedom from incarceration
* as a service-connected, disabled veteran, he humbly asks the Board to look at his record with empathy and consider the mitigating factors affecting him since his discharge

3.  The applicant provides:

* self-authored statement
* approval of Army separation, dated 13 April 1983
* VA Rating Decision, dated 9 July 2014
* DD Form 214
* partial copy of DA Form 2-1 (Personnel Qualification 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.  The applicant enlisted in the Regular Army on 25 August 1982.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13B (Cannon Crewman).

3.  On 14 February 1983, he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for possessing marijuana on 1 February 1983.

4.  On 18 March 1983, he received NJP under the provisions of Article 15 of the UCMJ for absenting himself from his unit without authority from on or about 
9 to 10 March 1983.

5.  A Report of Mental Status Evaluation, dated 23 March 1983, rated him as having normal behavior, being fully alert, fully oriented, displaying unremarkable mood or affect, thinking clearly with normal thought content, having good memory, and having the mental capacity to understand and participate in the separation proceedings.  He was mentally responsible and met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  He was psychologically cleared for any administrative action deemed appropriate by the command.

6.  On 25 March 1983, his company commander recommended his separation for unsatisfactory performance under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  His commander deemed him to be recalcitrant and unable to adapt to military life as evidenced by the two instances of NJP, one for possessing marijuana and one for being absent from his place of duty during a field training exercise.  His commander recommended a waiver of any rehabilitative transfer as the applicant demonstrated no potential to be a Soldier.

7.  A DA Form 4856-R (General Counseling Form) shows he was counseled on 25 March 1983 by his company commander regarding his intent to initiate separation proceedings for unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13.

8.  The applicant's records contain an undated acknowledgment of separation under the provisions of chapter 13 signed by the applicant.  The document states he was advised by legal counsel of the basis for his contemplated separation for unsatisfactory performance, 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 elected not to submit a statement in his own behalf and further acknowledged he understood that:

* he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him
* he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge
* he could apply to the Army Discharge Review Board or the ABCMR for an upgrade – however, an act of consideration did not mean his discharge would be upgraded

9.  On 13 April 1983, the separation authority approved the applicant's discharge for unsatisfactory performance under the provisions of Army Regulation 635-200 and directed the issuance of a General Discharge Certificate.  He was discharged accordingly on 27 April 1983.  His DD Form 214 shows he completed 8 months and 2 days of active service.

10.  His available service records do not contain documentation corroborating he sustained a back injury during his Army service and they do not indicate he:

* was issued a permanent physical profile
* suffered from a medical condition, physical or mental, that affected his ability to perform the duties required by his MOS and/or grade or rendered him unfit for military service
* was diagnosed with a medical condition that warranted his entry into the Army Physical Disability Evaluation System (PDES)
* was diagnosed with a condition that failed retention standards and/or was unfitting

11.  The applicant provided a VA Rating Decision, dated 9 July 2014, showing he was granted service connection for lumbosacral strain, claimed as a back condition, with a rating of 20 percent effective 11 March 2013.

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

	a.  Chapter 13 contains policy and outlines 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.

	b.  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.

13.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

	a.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected

	b.  Soldiers are referred to the PDES:

* when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board
* receive a permanent medical profile rating of 3 or 4 and are referred by an MOS Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, HRC

	c.  The PDES assessment process involves two distinct stages:  the medical evaluation board (MEB) and the physical evaluation board (PEB).  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his or her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are separated receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees.

	d.  The mere presence of medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

14.  Army Regulation 635-40 establishes the Army 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/her office, grade, rank, or rating.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

15.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VA Schedule for Rating Disabilities (VASRD).

16.  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims.  It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation.

17.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent.

18.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The VA does not have the authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  These two government agencies operate under different policies.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his DD Form 214 to reflect the narrative reason for separation as physical disability in lieu of administrative discharge for unsatisfactory performance and an upgrade of his character of service from general under honorable conditions to honorable was carefully considered and found to be without merit.

2.  The evidence of record shows the applicant displayed a pattern of unsatisfactory performance as evidenced by two incidents of documented NJP for possessing marijuana and absenting himself from his place of duty.  Therefore, his administrative discharge for unsatisfactory performance was appropriate.

3.  His administrative discharge was accomplished in compliance with applicable regulations without procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

4.  The totality of his records show the quality of his service generally did not meet the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization aside from honorable would be clearly inappropriate.  Therefore, there is no basis to change his character of service to honorable.

5.  Although the applicant claims to have injured his back during a field training exercise which hampered his ability to perform to standard, there is no record of evidence and the applicant did not provide any attesting to this injury or the treatment thereof.  A key element of the Army PDES is the Soldier's condition at the time of discharge.  It is not intended to be a prediction of future medical ailments.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's discharge and can only be accomplished through the PDES.  Referral to an MEB is warranted if there is a medical diagnosis of a disabling condition.

6.  Although the applicant provided a VA Rating Decision of 20-percent service connection for lumbosacral strain, the Army and the VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and/or a subsequent award of a rating by another agency does not establish an error by the Army.  Operating under different laws and policies, the VA does not have the authority or the responsibility to determine medical unfitness for military service.  The VA may award ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

7.  There is no evidence showing the applicant had a permanent physical profile, a diagnosis of a disabling condition that rendered him unable to perform the duties required of his MOS or grade, or a medical examination that warranted his entry into the PDES.  

8.  Referral into the Army PDES requires a designation of "unfit for duty" before an individual can be separated from the military because of an injury or medical condition.  At the time of the applicant's discharge, there was no evidence of an unfitting condition that would have warranted entry into the PDES.  Therefore, there is no basis to change the narrative reason for separation to reflect a physical disability discharge in lieu of administrative discharge for unsatisfactory performance.

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)                                         AR20140016715



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ABCMR Record of Proceedings (cont)                                         AR20140016715



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