APPLICANT REQUESTS: In effect, that his honorable discharge (HD) be changed to a medical discharge.
PURPOSE: To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.
EVIDENCE OF RECORD: The applicant's military records show:
He was born on 11 June 1953. He completed 10 years of formal education. On 14 February 1973, he enlisted in the Regular Army for 3 years. His Armed Forces Qualifications Test score was 40 (Category III).
On 8 March 1973, while in basic training, the applicant was admitted into the hospital for shortness of breath and dizziness. After being examined by a medical doctor the applicant was diagnosed as having hypertension. The doctor found the applicant medically unfit for enlistment and recommended that he be examined by a Medical Evaluation Board (MEB).
On 9 March 1973, the applicant voluntarily requested a discharge from active duty under the provisions of Army Regulation 635-200, chapter 5-9. The applicants request was based on physical reasons which existed prior to his enlistment into the Army. The applicant confessed to having had hypertension for approximately 5 years prior to his enlistment. He waived personal appearance and consideration and representation by counsel before a board of officers.
On 12 March 1973, a medical board found the applicant medically unfit for further military service because of hypertension. The medical board recommended that the applicant be separated from service due to a condition existing prior to enlistment.
On 19 March 1973, the appropriate authority approved the applicants request and directed the issuance a HD. On the same day, the applicant was discharged in pay grade E-1 under the provisions of Army Regulations 635-200, chapter 5-9, for not meeting physical standards at the time of entry with a HD. He had completed 1 month and 4 days of creditable active service.
Army Regulation 635-200, sets forth the basic authority for the separation of enlisted personnel. Chapter 5, paragraph 5-9, of that regulation, in effect at the time, provided, in pertinent part, for the separation of personnel who were not medically qualified under procurement medical fitness standards when accepted for initial enlistment will be separated. Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by appropriate military medical authority within 4 months of the applicants initial entrance on active duty.
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. Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 19 March 1973, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 19 March 1976.
The application is dated 19 December 1994, and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.
DETERMINATION: The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.
BOARD VOTE:
EXCUSE FAILURE TO TIMELY FILE
GRANT FORMAL HEARING
CONCUR WITH DETERMINATION
Karl F. Schneider
Acting Director
ARMY | BCMR | CY2008 | 20080018344
On 15 May 1973, the applicants battery commander initiated action to discharge the applicant for unfitness under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations Enlisted Personnel). There is no evidence the applicant was being treated for a psychiatric condition or that he was being processed for a medical discharge. There is no evidence the applicant was incompetent when he acknowledged the proposed discharge action.
ARMY | BCMR | CY2014 | AR20140010878
A review of the applicant's military personnel record failed to reveal a DD Form 458 (Charge Sheet) or a copy of the applicant's request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). On 4 December 1973, the applicant submitted an application to the Army Discharge Review Board (ADRB) for an upgrade of his discharge based on erroneous enlistment due to his medical condition. The...
ARMY | BCMR | CY2006 | 20060010527C071029
RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 February 2007 DOCKET NUMBER: AR20060010527 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. On 30 July 1973, action was initiated to separate the applicant under the provisions of Army Regulation 635-200, chapter 13 for unfitness. On 26 October 1973, the applicant was discharged, in pay grade E-1, with a...
ARMY | BCMR | CY2004 | 20040011227C070208
This medical record indicates the applicant applied for separation from the military under the provisions of Army Regulation 40-501 due to asthma. Chapter 7 of this regulation provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and...
ARMY | BCMR | CY2009 | 20090019837
The applicant requests, in effect, setting aside the decision of his Physical Evaluation Board (PEB) that he is unfit for military service and that he be reinstated in the U.S. Army Reserve (USAR). The applicant provides: * a copy of a letter from his doctor * a copy of Orders 09-131-00019, Headquarters, 88th Regional Support Command, dated 11 May 2009, transferring him to the Retired Reserve CONSIDERATION OF EVIDENCE: 1. On 9 February 2009, he received a PEB which determined he was unfit...
ARMY | BCMR | CY2004 | 2004106247C070208
RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 January 2005 DOCKET NUMBER: AR2004106247 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. Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions. The applicant contends that his discharge should be upgraded because at the time of...
ARMY | BCMR | CY2009 | 20090014455
The applicant enlisted in the Regular Army on 18 January 1967 for a 2-year period of service. However, his records contain a duly constituted DD Form 214 which shows that on 10 May 1973 the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 10, by reason of administrative discharge - discharge for the good of the service. Although the applicant's complete separation packet was not available for the Board's...
ARMY | BCMR | CY1995 | 9505975C070209
The applicant was discharged on 14 December 1977. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. It contains no information, advice or recommendation which would constitute a basis for granting the relief requested or for...
ARMY | BCMR | CY2010 | 20100011675
IN THE CASE OF: BOARD DATE: 2 November 2010 DOCKET NUMBER: AR20100011675 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). When separation for unsuitability was warranted an HD or a GD was issued as determined by the separation authority based upon the individuals entire record.
ARMY | BCMR | CY2011 | 20110012624
He informed the applicant there was not much evidence to support her back pain at the time. a. Paragraph 2-2b states that when a member is being separated by reason other than physical disability, the Soldier's continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that the Soldier was unable to perform his/her duties. As a result, there is insufficient evidence to show she was discharged from active duty for medical reasons.