IN THE CASE OF:	  

		BOARD DATE:	  27 August 2015

		DOCKET NUMBER:  AR20150000273 


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 an upgrade of his 1982 expeditious discharge from under honorable conditions (general) to fully honorable.  He also requests a personal hearing.

2.  The applicant states:

* the general discharge should be changed because of the racism he was subjected to while at Fort Bragg, NC
* this was also a direct result of his post-traumatic stress disorder (PTSD), injuries to his right knee, and behavioral troubles
* he is now rated at 100 percent total/permanent disability by the Department of Veterans Affairs (VA) 
* he wishes to obtain commissary privileges which would financially aid him in taking care of his family 

3.  The applicant provides his October 2014 VA rating decision.

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's records show he enlisted in the Regular Army on 8 May 1980. He completed the training requirements and he was awarded military occupational specialty (MOS) 94B (Food Service Specialist).  

3.  Following completion of MOS training and airborne training, he was assigned to the 2nd Battalion, 321st Field Artillery Regiment, Fort Bragg, NC.  The highest rank/grade he attained was private/E-2.  He was awarded or authorized the Army Service Ribbon. 

4.  His records reveal a history of negative counseling by members of his chain of command for various infractions including failure to repair, indebtedness, and a bar to reenlistment. 

5.  His records also reveal a history of acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on/for: 

* 26 January 1981, six instances of failure to repair; his punishment consisted of a reduction to E-1, forfeiture of pay, and extra duty
* 23 February 1981, assaulting another Soldier; his punishment consisted of a forfeiture of pay and 15 days of correctional custody facility 
* 13 April 1981, failing to go at the time prescribed to his appointed place of duty; his punishment consisted of a forfeiture of pay and extra duty
* 2 October 1981, disobeying a lawful order from military police; his punishment consisted of a forfeiture of pay

6.  On 15 September 1981, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his continued misconduct.  The commander stated the applicant had proven by his actions that he was not worthy of future service.  The applicant was furnished with a copy of this bar and provided a statement (not available with this case).  The approval authority approved his bar.  Additionally, on 2 June 1982, his commander terminated his airborne status.

7.  On 20 August 1982, the applicant's immediate commander advised him of his intent to initiate separation action against him under the provisions of paragraph 5-31 of Army Regulation 635-200, under the Expeditious Discharge Program (EDP).  The immediate commander recommended a General Discharge Certificate and cited the specific reasons as: 

* Clear substandard performance
* Inability to accept instructions and directions
* Lack of cooperation with peers and superiors

8.  The applicant acknowledged notification of the proposed separation action.  He subsequently consulted with legal counsel.  He acknowledged that:

* he had been advised of the basis for the contemplated separation action under the provisions of paragraph 5-31, Army Regulation 635-200, Personnel Separations
* he had been advised of the effect on future enlistment in the Army, the possible effects of a general discharge and of the procedures and rights that were available to him
* he may apply to the Army Discharge Review Board (ADRB) or the ABCMR for a review of his characterization of service; however, the act of consideration does not imply an upgrade of his discharge
* he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life 

9.  Subsequent to the applicant's acknowledgement and consult with counsel, his immediate commander initiated separation action against him under the expeditious discharge program.  His intermediate commander recommended approval and stated the applicant's record of service, behavior, and duty performance clearly reflected no potential for useful service under conditions of full mobilization.  He recommended a general discharge. 

10.  On 26 August 1982, consistent with the chain of command's recommendations, the separation authority waived further rehabilitation requirements and approved the applicant's discharge under the provisions of Army Regulations 635-200, paragraph 5-31, and directed that he be issued a general discharge certificate.  On 14 September 1982, the applicant was discharged accordingly. 

11.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, paragraph 5-31, EDP, due to failure to maintain acceptable standards for retention with a general discharge.  He had completed a total of 2 years, 
4 months, and 7 days of creditable active military service.  

12.  There is no indication he applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

13.  His service medical records are not available for review with this case.  Additionally:

* there is no indication in the available service records that he suffered an injury or an illness that rendered him unable to reasonably perform the duties of his grade or military specialty
* there is no record of a physical profile of a permanent nature that rendered him unable to perform the duties required of his MOS and grade
* there is no indication he was diagnosed with a condition that warranted processing through the Physical Disability Evaluation System (PDES)
* there is no indication he suffered from racism or addressed this issue with his chain of command or even raised this issue during the separation process
* there is no indication he filed an Equal Opportunity complaint regarding his alleged racism issue 

14.  He provides his VA rating decision, dated 14 October 2014.  It shows: 

* evaluation of PTSD which was rated at 50 percent was increased to 100 percent effective May 2013
* service connection for migraines was granted at zero percent effective May 2013
* service-connection for degenerative joint disease which was rated at zero percent was increased to 10 percent

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The pertinent paragraph in chapter 5 provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential may be discharged under the EDP.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge.  Issuance of an honorable discharge was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade and general aptitude.  A general discharge is a separation from the Army under honorable conditions if an individual's military record was not sufficiently meritorious to warrant an honorable discharge.

16.  Army Regulation 635-200, 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. 

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 or her 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).

18.  Army Regulation 635-40 states the mere presence of an 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.

19.  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 at less than 30 percent.

20.  Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body. The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director of the ABCMR may grant a formal hearing whenever justice requires. 



DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

2.  The available evidence shows the applicant continually displayed a clear substandard performance, an inability to accept instructions and directions, and a lack of cooperation with peers and superiors.  In other words, his chain of command believed he demonstrated he could not or would not meet acceptable standards of an enlisted Soldier.  Accordingly, his chain of command initiated separation action against him under the expeditious discharge program. 

3.  His separation was accomplished in compliance with applicable regulations with no evidence of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.

4.  Given his multiple instances of NJP, one of which was for assault, bar to reenlistment, and the termination of his airborne status, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he should not receive an honorable discharge.

5.  With respect to his arguments: 

	a.  There is no evidence in his records and he provided none to show he suffered an illness or an injury that rendered him unable to reasonably perform the duties required of his grade and/or military specialty.  He appears to have this common misconception that if he had gotten sick or went on sick call he would be automatically entitled to a medical discharge.

	b.  The Army must find that a Soldier is physically unfit to reasonably perform the duties associated with the Soldier's rank, grade or specialty and assigned an appropriate disability rating before the Soldier can be medically separated.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the PDES.  In this case the applicant failed to produce any evidence to substantiate a medical discharge.
	c.  An award of a rating by another agency for service-connection does not establish error by the Army.  Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  The applicant's service was not interrupted by any medical conditions; it was interrupted by his failure to meet Army standards of behavior and conduct.

	d.  Likewise, there is no evidence in his records and he provides none, such as an EO complaint, to support his contention that he suffered from racism or addressed this issue with his chain of command or even raised this issue during the separation process.  

	e.  Entitlements to commissary benefits are not within the purview of this Board.  The ABCMR does not correct records solely for the purpose of establishing eligibility for programs or benefits.  

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)                                         AR20150000273



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150000273



7


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1