RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        30 AUGUST 2005
      DOCKET NUMBER:  AR20050000199


      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.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. Paul Smith                    |     |Chairperson          |
|     |Ms. Yolanda Maldonado             |     |Member               |
|     |Mr. Leonard Hassell               |     |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, reconsideration of his earlier
application to have his military records corrected to show that he was
medically retired with entitlement to appropriate pay and benefits.

2.  The applicant states, in effect, that his case was recently remanded by
a Veterans Law Judge from the Board of Veterans' Appeals because of new and
material evidence which was in another file at the time his original case
was being reviewed by this Board.

3.  The applicant provides a copy of the 27 September 2004 Board of
Veterans' Appeal Docket which addressed the issue of whether new and
material evidence was received to establish basic eligibility for
compensation benefits as a result of injuries to the back and neck incurred
during a period of active duty for training.

4.  The applicant also submits copies of several documents which were
submitted to the Department of Veterans Affairs (VA) as part of a claim for
VA benefits in September 2003.  Included in those documents were several
letters from an attorney who assisted the applicant with a lawsuit in 1978
for injuries resulting from an automobile accident and, as of 2003, was
attempting to assist the applicant in his VA appeal.  He also submits five
identical statements from family members and a minister who noted they had
knowledge that the applicant was injured in an automobile accident at Fort
Jackson in October 1976 and hospitalized until January 1977, a 1999 and
2003 statement from the applicant, a statement from the Disabled American
Veterans National Service Office supporting his claim for VA disability
benefits, a copy of a 2003 psychological evaluation, and a copy of his
August 1976 Report of Medical History, completed as part of his enlistment
physical examination.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR2004106124, on 26 October 2004.

2.  Other than the applicant's 1976 separation document, which discharged
him from active duty and as a Reserve of the Army, and his 1976 discharge
document from the Army National Guard, the applicant's Official Military
Personnel File is still not available to the Board.

3.  The applicant's file does, however, contain several documents,
including the applicant's 1999 statement, his enlistment physical
examination, and three 1998 letters signed by the applicant's attorney,
which were included with his recent application to the Board and which may
have previously been available to the Board.  However, none of those
documents were addressed in the Board's original Record of Proceedings.  As
such, it would be appropriate for the Board to address those documents, as
well as the new documents he now submits which were not previously
reviewed.

4.  In the 1999 statement authored by the applicant he indicated he
enlisted in the Army on 6 August 1976 and in October of 1976, while in the
course of his duty as a Soldier, became disabled as a result of an
automobile accident.  He stated that while in the hospital his executive
officer, without his consent or by Military Tribunal, stopped all pay and
honorably discharged him for unsuitability.  He states he was not available
to sign his separation document and referred to his Department of the Army
Form 214 (Report of Separation from Active Duty) as evidence.

5.  In his 2003 statement the applicant noted errors in his social security
account number, his date of birth, and his middle initial on his 1976 Army
separation document.  He also referred to exhibits supporting those errors,
although the exhibits were not included with the documents provided by the
applicant to the Board.  In that same 2003 statement the applicant again
noted he was injured in an automobile accident and taken to the Fort
Jackson Medical Center where he was in a coma for approximately 2 months.
He stated that while in the hospital a Soldier with his same name was being
discharged and when hospital officials tried to identify him (the
applicant) they were unable to do so.  He noted when he regained
consciousness and was able to get around in a wheel chair he was discharged
from the hospital facility because they felt he was no longer in the
military.

6.  The multiple letters, submitted by the applicant from the attorney who
indicated he had represented the applicant in a lawsuit in 1978, include
five letters signed by that attorney.  Three of the letters are dated in
November 1998 and two letters are dated 8 August 2003.  One 1998 letter, to
the applicant, thanked him for asking the attorney to represent him in his
VA disability case and informed the applicant that his office files only
went back to 1984, but that he would attempt to retrieve documents from
various agencies regarding medical and investigative records about the
applicant's automobile accident.  The second 1998 letter was to the
Department of Veterans Affairs in Indianapolis informing them of his intent
to see if he could retrieve documents associated with the applicant's
automobile accident.  The final 1998 letter was to the Fort Jackson, South
Carolina Military Police Office seeking records associated with the
applicant's automobile accident.  In that letter the attorney stated the
applicant was a passenger in a taxi when the accident occurred on the Fort
Jackson Reservation in October 1976.

7.  Both of the August 2003 letters signed by the attorney are addressed to
the assistant supervisor of the VA Regional Office in Decatur, Georgia.
One letter states that in 1978 the applicant was referred to the attorney
for a lawsuit resulting from an injury he incurred while in the Army.  The
attorney related the applicant had only been in the Army for about a month
and a half and was in the process of taking basic training at Fort Jackson.
 He stated that because several Soldiers from Fort Jackson had been
attacked and robbed in Columbia, South Carolina, Fort Jackson sent
contingents of Soldiers, sworn in as Military Police, to police in some of
the bad areas of Columbia.  He noted these individuals worked various
shifts and that military transportation was not provided.  He stated the
applicant and two other Soldiers were provided cab service to return to the
installation and that when the cab driver crossed into the military
reservation the cab driver apparently fell asleep and ran off the road and
into a ditch.  The applicant and the two other Soldiers were seriously
injured.  He noted the applicant was in a coma for approximately 2 months
and that meanwhile a Soldier with the same name was being discharged.  The
attorney concluded his statement by indicating that it was his firm’s
belief that since the injury was service connected, the applicant should
received benefits.  The second 2003 letter asked that if a hearing were
held that the attorney be notified so he, the applicant, and other
individuals could attend.

8.  The five statements from family members and the minister are identical
and are all dated in July 2003.  The statements indicate they had knowledge
the applicant was injured in an automobile accident on the Fort Jackson
Military Reservation in October 1976, that he was hospitalized until
January 1977, and while hospitalized another person by the same name was
discharged.

9.  The psychological evaluation, conducted in 2003, notes the applicant
reported he was severely injured in a car accident while in the Army in
1976.  He reported being pinned in a car for several hours after a piece of
metal went through his liver, neck and back and that he was in a coma for 2
months with a broken spine, neck, back and arm.  He reported after waking
from the coma he underwent five surgeries prior to spending 1 year in a
rehabilitation hospital.

10.  The applicant's Report of Medical History, which he would have
completed as part of his entrance physical examination noted he was in good
health.  His Army separation document indicates he entered active duty on
17 October 1976 and was released from active duty 26 days later on 12
November 1976 as a marginal or non-productive performer under the trainee
discharge program.  He was discharged as a Reserve of the Army and as a
member of the Army National Guard that same day.

11.  An original copy of the applicant's separation document was not
available to the Board.  Army Regulation 635-5, which establishes the
policies and provisions for the preparation and distribution of separation
document states that when the Soldier being separated is unavailable to
sign his or her separation document an entry to that effect will be entered
in the signature block.

12.  The Board of Veterans' Appeal docket, provided by the applicant as his
evidence that his case warranted reconsideration because it had been
remanded by a Veterans Law Judge from the Board of Veterans' Appeals is
dated
27 September 2004.  In the Veterans Law Judge summary it was noted that the
applicant claimed he incurred injuries to the neck and back in an October
1976 automobile accident during a period of active duty for training.
However, it was also noted that at one time the applicant stated his
injuries were incurred as a result of a gunshot.  The Veterans Law Judge
noted the applicant reported that a fellow occupant of the automobile had
been killed, that he had reported in private medical records in November
1997 and in correspondence dated in June 2000, that he had received
treatment pertinent to his appeal at VA medical facilities in Florida and
Indiana, and as such the VA medical records pertinent to the applicant's
appeal must be obtained for an adequate determination.

13.  The document indicates the Veterans Law Judge remanded the applicant's
VA appeal to the AOJ (agency of original jurisdiction) to obtain all VA
medical treatment records, make specific requests for a search of medical
records at VA facilities in Florida and Indiana, notify the applicant that
additional evidence documenting the exact date his injuries were incurred
should be provided to substantiate his claim, and that he should secure
documents contemporaneous to his claimed injuries in October 1976, such as
newspaper articles about the accident or death of the other Soldier and
that upon securing such documents and information the Regional Officer
should review the issue on appeal and if the benefits sought remain denied,
thereafter the case should be returned to the Board of Veterans' Appeals
for appellate review.

14.  The Trainee Discharge Program provided for the administrative
separation of individuals who had demonstrated during the first 180 days of
training that they lacked the necessary motivation, discipline, ability or
aptitude to become effective Soldiers.
15.  Army Regulation 635-40 states that 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the decision of the Veterans Law Judge
of the Board of Veterans' Appeal directed that this Board grant relief in
his case is without foundation.  The Veterans Law Judge remanded the
applicant's VA appeal to the AOJ in order to secure additional documents
necessary to properly adjudicate the applicant's VA claim, not his appeal
to this Board.

2.  There continues to be no medical evidence which confirms the applicant
was injured while on active duty and erroneously discharged.  In the
absence of such medical evidence, like the Department of Veterans Affairs,
this Board is precluded from granting the relief requested.

3.  The applicant's argument that his unsigned separation document is
evidence which supports his claim he was in a coma at the time the document
was prepared is also not sufficiently convincing that any error or
injustice occurred.  Had the applicant not been available to sign the
document, as he claims, a statement to that effect would have been entered
in the signature block.  The absence of an original separation document
makes it impossible to determine the validity of the applicant's argument.

4.  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 that requirement.

5.  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

___PS __  ___YM __  ___LH___  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 to amend the decision of
the ABCMR set forth in Docket Number AR2004106124, dated 26 October 2004.




                                  _______Paul Smith________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000199                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050830                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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