BOARD DATE:	  14 May 2015

		DOCKET NUMBER:  AR20150000815 


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 discharge under other than honorable conditions to general under honorable conditions or, alternately, amendment of the narrative reason for separation to show physical disability.

2.  The applicant states:

* he experienced mental health issues while serving on active duty which led to an attempted heroin overdose
* he received weekly counseling for depression and substance abuse via the Sunshine Program at Fort Riley, KS
* during this time he was awaiting court-martial for charges of forgery and strong-armed robbery
* he was sentenced to 6 months of hard labor, reduction in rank/grade to private/E-1, forfeiture of pay, and he was later reassigned to the retraining brigade at Fort Riley
* he completed the retraining program and was awaiting orders for his next duty station when he relapsed with alcohol and was charged with drunk and disorderly conduct
* subsequent to that incident, he was discharged from the Army under other than honorable conditions
* he believes his discharge should be upgraded because he did not receive full treatment for his mental health and substance abuse issues prior to his discharge
* an upgraded characterization or change to the narrative reason for his discharge would allow him to be eligible to pursue service-connected compensation from the Department of Veterans Affairs (VA)

3.  The applicant provides a VA service verification letter, dated 23 December 2014.

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 military records are not available for review.  The Army Review Boards Agency requested the applicant's military records from the National Personnel Records Center (NPRC), but the request was returned without success as there are no available records pertaining to the applicant at NPRC.

3.  The applicant-provided a VA service verification letter, dated 23 December 2014, certifying he entered active duty in the Regular Army on 14 July 1972 and was discharged on 2 May 1974 (presumably for the purpose of immediate reenlistment on 3 May 1974).  He again entered active duty on 3 May 1974 and was discharged on 22 July 1977.  His service was characterized as under other than honorable conditions.

4.  The applicant claims to have been tried by court-martial for charges involving forgery and strong-armed robbery, of which he was found guilty.  He admits being sentenced to 6 months of hard labor, forfeiture of pay, and reduction in rank/grade to private/E-1.  Records of his court-martial proceedings are not available for review.

5.  The applicant contends he underwent weekly counseling sessions for depression and substance abuse while awaiting court-martial, but the treatment was incomplete.  There is no record of evidence and the applicant has not provided any showing he suffered from depression or substance abuse and underwent treatment for either condition.  There is also no indication he:

* suffered from a medical condition, physical or mental, that affected his ability to perform the duties required by his military occupational specialty (MOS) and/or grade or rendered him unfit for military service
* was issued a permanent physical profile
* 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

6.  The VA service verification letter shows the applicant was discharged under other than honorable conditions on 22 July 1977.  The applicant's DD Form 214 (Report of Separation from Active Duty) is not available for review and the exact circumstances surrounding his discharge are unknown.

7.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7 provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial.

8.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).

	a.  Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the required standards.

9.  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.  Once a determination of physical unfitness is made, the physical evaluation board (PEB) rates all disabilities using the VA Schedule for Rating Disabilities.

10.  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 into 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 (MEB)
* 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 MEB and the PEB.  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/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 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 on 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/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 medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge under other than honorable conditions to general under honorable conditions or, alternately, amendment of the narrative reason for separation to show physical disability was carefully considered and found to be without merit.

2.  The applicant's military records are not available for review.  It is incumbent upon the applicant to provide a compelling argument supported by corroborating documentation to show his records are in need of correction based on an injustice or inequity.  In the absence of such evidence, administrative regularity is presumed with regard to his court-martial, medical treatment, and subsequent discharge.

3.  There is no indication his discharge was not accomplished in compliance with applicable regulations without procedural errors which would have jeopardized his rights.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant does not dispute being sentenced by a court-martial secondary to charges of forgery and armed robbery.  It would be appropriate that he was given a discharge under other than honorable conditions if he were indeed found guilty of these charges, later compounded by a charge of drunk and disorderly conduct.  If this were the case, the quality of his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis to change his character of service to general under honorable conditions.

5.  There is no evidence showing he 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 evaluation that warranted his entry into the PDES.  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.  There is no evidence showing he suffered from an unfitting condition at the time of his discharge.  Therefore, there is no basis to change the narrative reason for separation to reflect physical disability.

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)                                         AR20150000815



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ABCMR Record of Proceedings (cont)                                         AR20150000815



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