ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  30 July 2019

	DOCKET NUMBER:  AR20160016315


APPLICANT REQUESTS: that item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) changed from unsatisfactory performance to disability or medically separated.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states, he suffered from a lung condition resulting from gas training and could no longer continue training.  The condition did not exist prior to his exposure to the gas.  He feels that it is unfair that he could no longer train and although he received an honorable characterization of service, he should not have to see unsatisfactory performance on his DD Form 214.

3.  A review of his service records shows:

	a.  He enlisted in the Regular Army (RA) on 25 September 1996.  He completed Basic Combat Training, however, he did not complete Advanced Individual Training in order to receive a military occupational specialty.

	b.  His immediate commander notified him on 6 May 1997 that action was being initiated to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 13 (Separation for Unsatisfactory Performance), based on his inability to meet the standard on the Army Physical Fitness Test (APFT).  He recommended an honorable characterization of service.

	c.  The applicant acknowledged the commander’s intent to separate him under the provisions of AR 635-200, chapter 13.  He subsequently consulted with legal counsel on 6 May 1997 and acknowledged:

* the basis for the contemplated action to separate him for unsatisfactory performance, its effects, and the rights available to him
* that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued
* he may be ineligible for many or all benefits as a veteran under both Federal and State laws

	d.  Subsequent to the applicant's acknowledgement, the immediate commander formally initiated separation action against the applicant under the provisions of 
AR 635-200, chapter 13 for unsatisfactory performance (memorandum not dated).  The commander noted he lacked the commitment and initiative to pass the Army Physical Fitness Test (APFT).  The separation action does not list any reference to physical limitations.

	e.  The approval authority on 28 May 1997, following a legal review for legal sufficiency approved the recommendation for separation under the provisions of 
AR 635-200, chapter 13, with the issuance of an honorable characterization of service.

	f.  He was discharged on 2 June 1997.  His DD Form 214 shows he was discharged from active duty under the provisions of AR 635-200, Chapter 13 with an honorable characterization of service.  He completed 8 months, and 8 days of active duty service.  It also shows in:

* item 23 (Type of Separation), Discharge
* item 24 (Character of Service), Honorable
* item 25 (Separation Authority), AR 635-200, Chapter 13
* item 26 (Separation Code), JHJ (Unsatisfactory Performance)
* item 27 (Reentry Code), 3
* item 28 (Narrative Reason for Separation), Unsatisfactory Performance

4.  On 13 May 2019, the Army Review Boards Agency medical advisor/ psychologist reviewed the applicant's case and rendered an advisory opinion and opined:

	a.  Review of the applicant's electronic Department of Veterans Affairs (VA) medical record (JLV) indicates that the applicant is 100% service connected, 100% for Major Depressive Disorder and 10% for Tinnitus.

	b.  Based on the available medical record, the applicant met retention standards in accordance with AR 40-501 (Standards of Medical Fitness), there are no medical records during active duty service.

	c.  A review of the available documentation found insufficient evidence of a medical disability or condition that would support a change to the character or reason for the discharge in this case.

	d.  Therefore, based on the information currently available, it is the opinion of the Agency Medical Advisor that a referral of the applicant's record to the Integrated Disability Evaluation System (IDES) for reconsideration of military medical retirement is not indicated at this time.

5.  On 12 June 2019, the applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal.  He did not respond.

6.  By regulation, separations under the provisions of AR 635-200, chapter 13 establishes policy that Soldiers may be separated per. this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. 

7.  In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that relief was not warranted.  Based upon the medical advisory finding insufficient evidence of a medical disability or condition that would support a change to the character or reason for the discharge and the applicant failing to provide a rebuttal to those findings, the Board concluded that there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s narrative reason for separation.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	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.
	 
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.


REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.
2.  Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

3.  AR 40-501 (Medical Services – Standards of Medical Fitness) governs regulation governs Medical fitness standards for enlistment, induction, and appointment, including officer procurement programs, Medical fitness standards for retention and separation, including retirement, Medical fitness standards for diving, Special Forces, Airborne, Ranger, free fall parachute training and duty, and certain enlisted military occupational specialties (MOSs) and officer assignments.  It also governs Medical standards and policies for aviation, Physical profiles, and Medical examinations.

4.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  BCM/NRs may grant clemency regardless of the type of court-martial.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment.  Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

ABCMR Record of Proceedings (cont)	 AR20160016315


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