IN THE CASE OF: BOARD DATE: 26 April 2016 DOCKET NUMBER: AR20150006503 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ____X____ ____X____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 26 April 2016 DOCKET NUMBER: AR20150006503 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. IN THE CASE OF: BOARD DATE: 26 April 2016 DOCKET NUMBER: AR20150006503 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 record to show he was discharged for medical reasons. 2. The applicant states he was injured while in Iraq and came home to have surgery. After he was cleared for surgery, he received a discharge while he was still in the hospital. His unit released him because of his service-connected injuries. 3. The applicant provides: * DA Form 5181 (Screening Note of Acute Medical Care), dated 14 June 2007 Standard Form (SF) 600 (Chronological Record of Medical Care), dated 1 October 2007 * a medical treatment document, dated 3 November 2010 * a letter from Operation Enduring Freedom/Operation Iraqi Freedom (OEF/OIF) Clinic, Department of Veteran Affairs (VA) Medical Center, Cincinnati, Ohio, dated 13 June 2011 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. Following prior service in the Regular Army, the U.S. Army Reserve (USAR), and the Army National Guard (ARNG), the applicant reenlisted in the USAR on 25 January 2006. 3. The applicant was discharged from the USAR on 21 September 2010. The facts and circumstances leading to his separation are not available for review; however, Orders Number 10-159-00026, issued by Headquarters, 81st Regional Support Command, Fort Jackson, South Carolina on 16 September 2010, show he was discharged under other than honorable conditions in accordance with Army Regulation 135-178 (Army National Guard and Army Reserve – Separation of Enlisted Personnel). 4. His record is void of mobilization orders or any other documentation, including a DD Form 214 (Certificate of Release or Discharge from Active Duty), which shows he deployed to Iraq. 5. His service medical records are not available for review in this case. 6. On 14 October 2011, the Army Discharge Review Board (ADRB) determined his discharge was proper and equitable and denied his request for an upgrade. 7. The applicant provides: a. An SF 600 that shows he was seen on 30 September 2007 for a puncture wound to the hand. According to this document, the puncture wound was caused by a nail. b. An extract from his civilian medical record, dated 3 November 2010, which shows he underwent surgery on 25 August 2010 to repair a herniated disc (C6-C7) in his neck, extending to the right side. It notes that he had failed conservative treatment and opted for surgical intervention. Surgery was performed and he was taken to recovery in stable condition. REFERENCES: 1. 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. Under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line of duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training (IDT); and (2) The disability must not have resulted from the Soldier’s intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 2. 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%. DISCUSSION: 1. The applicant's request for an upgrade of his under other than honorable discharge to a medical discharge was carefully considered. 2. The applicant contends he was injured while in Iraq and came home to have surgery. He further contends he was discharged while in the hospital recovering from his surgery, despite his service-connected injuries. 3. His record is void of documentation that shows he deployed to Iraq, or that shows he was returned from theater due to an injury or physical disability. a. He provides medical documentation that shows he underwent surgery for a herniated disc in his neck on 25 August 2010, approximately 3 weeks prior the date of his discharge order. It cannot be determined whether or not he had been discharged from the hospital by that time. b. Regardless, since he was discharged under other than honorable conditions, it is likely that his discharge was predicated on some other, unknown factor(s) beside the herniated disc in his neck. 4. The facts and circumstances leading to the applicant's discharge are not available for review; however, there is no evidence and the applicant has not provided evidence that shows the Army erred in the processing of his discharge. The Board starts its consideration with a presumption of regularity that what the Army did was correct. The burden of proving otherwise is the responsibility of the applicant. 5. Therefore, it is presumed that in the absence of such evidence, what the Army did was correct and there is no basis for correcting the applicant's record to show he was discharged by reason of medical disability. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150006503 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150006503 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2