IN THE CASE OF: BOARD DATE: 26 April 2012 DOCKET NUMBER: AR20110019927 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 general discharge to an honorable discharge and correction of his record to show that he was retired from active service. 2. The applicant states he was discharged from service without the benefit of a medical board. He is currently receiving payments based on a service-connected disability of 70% from the Department of Veterans Affairs (VA). He further states he had 18 years, 9 months, and 17 days of active service prior to discharge and that others have received retirement based on fewer years of service. He believes he should be given the same consideration. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * NA Form 13038 (National Archives and Records Administration Certification of Military Service) * a two-page service connected compensation letter from the VA 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 31 March 1971. He completed training and was awarded military occupational specialty 36H (Dial/Manual Central Office Repairer). The highest rank/grade he attained during his military service was staff sergeant (SSG)/E-6. However, he held the rank/grade of specialist/E-4 at the time of discharge. 3. The applicant was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on: a. 8 April 1987, for disobeying a lawful order on two occasions, dereliction of duty, and for failing to go to his appointed place of duty; b. 16 June 1987, for wrongfully and without authority wearing the insignia of the rank of a SSG; c. 19 August 1988, for failing to go to his appointed place of duty; and d. 11 January 1990, for uttering three checks without sufficient funds. 4. His service record contains a history of counseling by members of his chain of command for failing to pass his Army Physical Fitness Test, poor job performance, writing bad checks, lying, not paying his bills, and for failing to go to his appointed place of duty on numerous occasions. In addition, his record contains a DA Form 2166-7 (Noncommissioned Officer Evaluation Report) for the period September through December 1988, which documents poor performance and promotion potential. 5. His record contains a DA Form 4126-R (Bar to Reenlistment Certificate), which shows he received a locally imposed bar to reenlistment on 27 April 1988. 6. On 3 November 1988, the applicant received notification of a Department of the Army (DA) imposed bar to reenlistment under the qualitative management program. The applicant was counseled, elected to appeal, and submitted his appeal on 19 January 1989. On 31 March 1989, the applicant’s appeal was carefully reviewed and not favorably considered by the DA Standby Advisory Board. In its letter, the board stated the applicant’s past performance and estimated potential were not in keeping with the standards of the noncommissioned officer corps. The letter also stated, as an exception to policy, the applicant could extend his period of enlistment for two months to achieve retirement eligibility. However, the applicant must have been otherwise qualified for extension, and his retirement must have taken place prior to 1 April 1991. 7. On 28 April 1989, the applicant's immediate commander notified the applicant of his intent to discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13 for unsatisfactory performance and for the irresponsible management of his personal finances. 8. His records contain a Standard Form 88 (Report of Medical Examination), dated 1 May 1989, which shows the applicant received a separation medical examination and was found to be qualified for separation. Item 76 (Physical Profile) of this form indicates the applicant was given a T-3 rating for his lower extremities and issued a temporary profile for 90 days on 4 April 1989. 9. On 4 May 1989, the applicant acknowledged he had been notified of the pending separation action against him and that he had been advised by counsel of the basis for the contemplated action to separate him for unsuitability. The applicant requested consideration of his case by a board of officers and to a personal appearance before a board of officers; however, he elected not to submit a statement in his own behalf. 10. On 27 July 1989, the applicant personally appeared before an administrative separation board. After careful review, the commanding general concurred with the findings and recommendations of the board and recommended, despite his years of service, the applicant be given an under honorable conditions (general) discharge. On 15 November 1989, the separation authority approved the applicant's discharge from the Army under the provisions of Army Regulation 635-200, chapter 13 with a General Discharge Certificate. 11. On 17 January 1990, the applicant was discharged accordingly. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance with a General Discharge Certificate. He completed 18 years, 9 months, and 17 days of total active service. 12. The applicant provides documentation which shows he is currently receiving service-connected compensation from the VA. 13. On 8 December 1992, the applicant was informed his application to the Army Discharge Review Board for an upgrade of his discharge was denied. 14. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 of the regulation in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service. In pertinent part, it provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively. When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record. 15. 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. 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 office, grade, rank, or rating. It provides for a medical evaluation boards (MEB) 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). Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. This regulation also states the following: a. Paragraph 2-1 provides that 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 2-2b(1) states that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his continued performance of duty (until he is referred to the PDES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty. Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating. c. Paragraph 2-2b(2) states that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty. d. Paragraph 2-2b(3) states that when the member's referral for physical evaluation is related to physical examinations given as a part of non-disability retirement processing (voluntary or mandatory), the above evidence must be clear and convincing to overcome the presumption of fitness. In other cases (resignation, reduction in force, release from active duty, administrative separation, discharge, etc.), the presumption of fitness may be overcome by a preponderance of evidence. 17. Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Chapter 3 gives the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individual in paragraph 3-2, below. These medical conditions and physical defects, individually or in combination, are those that may: a. Significantly limit or interfere with the Soldier's performance of duties. b. Compromise or aggravate the Soldier's health or well-being if he or she were to remain in the military service; this may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring. c. Compromise the health or well-being of other Soldiers. d. Prejudice the best interests of the government if the individual were to remain in the military service. 18. 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%. 19. Title 38, U.S. Code, sections 1110 and 1131, permits 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 an 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 Army disability rating is to compensate the individual for the loss of a military career. The VA does not have 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. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. 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 contention that his general discharge should be upgraded to an honorable discharge and that he be subsequently retired has been carefully considered. Unfortunately, there is insufficient evidence to support this request. 2. The applicant's record reveals he was counseled multiple times by his chain of command, but he failed to respond constructively. He received numerous punishments under the UCMJ and a local and DA bar to reenlistment. The applicant could have remained on active duty up to and including retirement had his performance been satisfactory. Ultimately, his chain of command initiated separation action against him for unsuitability. 3. The evidence of record shows his separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors which would have jeopardized his rights. The discharge proceedings were conducted in accordance with applicable law and regulations and the character of his service is commensurate with his record of military service. In addition, the reason for discharge was both proper and equitable. 4. Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, he is not entitled to an upgrade of his general discharge to an honorable discharge. 5. The purpose of the PDES is 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 a service-connected disability, and to provide prompt disability processing while ensuring that the rights and interests of the Army and the Soldier are protected. 6. As such, a Soldier who suffers an injury or an illness while on active duty is retained in the service until the Soldier has attained maximum hospital benefits and completion of a disability evaluation if otherwise eligible for referral into the disability system. Medical officials are responsible for counseling Soldiers concerning their rights and privileges at each step in the disability process beginning with the decision of the treating physician to refer the Soldier to an MEB and until final disposition is accomplished. 7. There is no evidence in the available record and he did not provide any evidence which shows he was medically unfit to perform his duties prior to separation in January 1990 or that he was diagnosed with a medical condition which would have warranted his entry into the PDES. The applicant has not shown error, injustice, or inequity for the relief he requests. 8. In view of the foregoing, there is no basis for granting the applicant's 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) AR20110019927 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110019927 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1