RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 January 2008 DOCKET NUMBER: AR20070012535 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Ms. Catherine C. Mitrano Director Ms. Deyon D. Battle Analyst The following members, a quorum, were present: Ms. Shirley L. Powell Chairperson Mr. Paul M. Smith Member Mr. Larry C. Bergquist Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, correction of his records to show that he was discharged by reason of physical disability. 2. The applicant states, in effect, that he should have been discharged by reason of physical disability. 3. The applicant provides in support of his application a copy of his enlistment Report of Medical Examination, dated 19 March 1974; a copy of his Medical Condition – Physical Profile Records; and copies of his Records of Medical Care. 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. On 19 March 1974, the applicant underwent a medical examination for the purpose of enlistment in the Army. Although the examination revealed that he had a condition requiring medical attention, he was found to be medically qualified for enlistment in the Army. 3. On 30 March 1974, the applicant enlisted in the Army in Jacksonville, Florida, for 2 years, in the pay grade of E-1. He went on to successfully complete his basic combat training. 4. On 2 October 1974, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13-5b for unsuitability. The commander cited apathy, ineptness, inability to train successfully due to awkwardness, and lack of readiness of skills as the basis for his recommendation. The commander also cited four records of counseling during the month of September 1974 as part of his recommendation for discharge. 5. The applicant acknowledged receipt of the recommendation for discharge on 17 October 1974. After consulting with counsel, he waived his right to submit a statement in his own behalf. 6. The applicant underwent a mental status evaluation on 18 October 1974 and he met the retention standards prescribed in Army Regulation 40-501. 7. The appropriate authority approved the recommendation for discharge on 22 October 1974 and he directed the issuance of a general discharge. 8. Accordingly, on 13 November 1974, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 13-5b, due to unsuitability. He had completed 7 months and 14 days of total active service and he was furnished a General Discharge Certificate. 9. A review of the available medical records fails to show that the applicant had any medical conditions that would have required his being process for discharge through medical channels. 10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsuitability, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. 11. Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay. 12. Army Regulation 40-501, at chapter 3, provides standards for medical retention. Basically, members with conditions as severe as listed in this chapter are considered medically unfit for retention on active duty. DISCUSSION AND CONCLUSIONS: 1. The medical evidence of record indicates that the applicant was medically fit for retention at the time of his separation. He has submitted no probative medical evidence to the contrary. 2. The applicant did not have any medically unfitting disability which required physical disability processing. Therefore, there is no basis for physical disability retirement or separation. 3. In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. 4. In view of the foregoing, there is no basis for granting the applicant's request. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __LCB__ __PMS__ __SLP ___ 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. ___ Shirley L. Powell___ CHAIRPERSON INDEX CASE ID AR20070012535 SUFFIX RECON DATE BOARDED 20080129 TYPE OF DISCHARGE DATE OF DISCHARGE DISCHARGE AUTHORITY DISCHARGE REASON BOARD DECISION DENY REVIEW AUTHORITY ISSUES 1. 177 108.0000/DISABILITY SEP OR RET 2. 3. 4. 5. 6.