RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          17 November 2005
      DOCKET NUMBER:  AR20050002442


      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             |
|     |Mr. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. John E. Denning               |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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, that his general discharge be
upgraded to an honorable discharge by reason of physical disability.

2.  The applicant states that he had just lost his Dad in a three car
collision on 28 February 1974 and a week later his mother committed suicide
and at the age of 17, he decided that he needed some major structure in his
life so he joined the Army.  He goes on to state that he developed major
lower back pain while in boot camp and later ended up seeing a doctor who
determined that he had a pelvic tilt that he believed was due to physical
training.  During the latter part of his service his commander called him
in and informed him that he would have to be medically discharged.  Knowing
how close he and his twin were, they played on their emotions by saying
that one was going home and the other one was not.  They set and watched
them cry and then offered them both a general discharge on the same day.
He continues by stating that he was told that a medical discharge would
take 6 or more months so being young and not knowing what he was doing he
accepted the honorable discharge.  He further states that he has been a
paraplegic since 1988 due to an automobile accident and he and his family
of four live on $24,000 a year.  His wife has no health insurance and
cannot afford health insurance so any change he can receive to his
discharge would be helpful to his family.

3.  The applicant provides copies of documents from his military medical
records and a copy of his report of separation (DD Form 214).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 17 July 1975.  The application submitted in this case is dated
26 January 2005 and was received on 15 February 2005.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  He enlisted with his twin brother in Amarillo, Texas, with a medical
waiver on 22 October 1974 for a period of 3 years and assignment to Fort
Sill, Oklahoma.

4.  He completed all of his training at Fort Sill and remained assigned
there upon completion of his advanced individual training as a field
artillery crewman.

5.  On 31 March 1975, nonjudicial punishment (NJP) was imposed against him
for being absent from his place of duty from 27 March to 28 March 1975.
His punishment consisted of a forfeiture of pay (suspended for 60 days) and
extra duty.  The suspended punishment was vacated by his commander on 9
April 1975.

6.  The applicant was confined by civil authorities in Dumas, Texas, from
19 May to 16 June 1975.  The record is silent as to any punishment for that
absence.

7.  The applicant underwent a mental status evaluation and was determined
to be mentally responsible, able to distinguish right from wrong and to
adhere to the right.  He also underwent a medical/physical examination and
was deemed fit for retention or separation.

8.  On 1 July 1975, the applicant’s commander initiated action to separate
the applicant from the service under the provisions of Army Regulation 635-
200, paragraph 5-37 and the Expeditious Discharge Program (EDP).  He cited
as the basis for his recommendation the applicant’s disciplinary record and
failure to meet acceptable standards for continued military service.  He
informed the applicant of his rights, to include his right to decline the
discharge.

9.  After being afforded the opportunity to consult with counsel, the
applicant voluntarily consented to accept a discharge under the EDP and
elected not to submit a statement in his own behalf.

10.  The appropriate authority approved the recommendation for discharge on
14 July 1975 and directed that he be furnished a General Discharge
Certificate.

11.  Accordingly, he was discharged under honorable condition on 17 July
1975, under the provisions of Army Regulation 635-200, paragraph 5-37 and
the EDP.  He had served 7 months and 27 days of total active service and
had 30 days of lost time due to confinement by civil authorities.

12.  The documents submitted by the applicant with his application consists
of a copy of an entrance physical examination (with no name) and indicates
that the individual examined was underweight by 2 pounds, that the
individual had a functional murmur and that the individual had a pelvic
tilt.  He also provides medical documents to show that he went on sick call
as early as 16 January 1975 complaining of back pain.  On 26 March 1975, he
related that his back pain had persisted for more than 2 years.  On 10
April 1975 he related to the attending official that he continued to have
lower back pain, that he had physical therapy in civilian life for a
history of slipped disc.

13.  A review of the available records fails to show any indication that
the applicant was being considered for a discharge by reason of
physical/medical disability or that medical condition was ever deemed to be
of such severity that he was considered unfit for retention.

14.  There is no evidence in the available records to show that he ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that board’s 15-year statute of limitations.

15.  The Department of the Army began testing the Expeditious Discharge
Program (EDP) in October 1973.  In a message dated 8 November 1974 the
Deputy Chief of Staff for Personnel announced the expansion of the EDP.
The program provided for the separation of soldiers whose acceptability,
performance of duty, and/or potential for continued effective service fall
below the standards required for retention in the Army.  Soldiers may be
separated under this program when subjective evaluation of their commanders
identifies them as lacking qualities for continued military service because
of attitude, motivation, self-discipline, inability to adapt socially or
emotionally, or failure to demonstrate promotion potential.  Soldiers had
to consent to separation under this program in order for commanders to
separate them under the provisions of the EDP.  Otherwise, a commander was
required to separate soldiers under other provisions of the regulation,
which in most cases resulted in a discharge under other than honorable
conditions.  There have never been any automatic provisions to upgrade such
a discharge.

16.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement,
or Separation, paragraph 3-2b, provides 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.

17.  Title 38, United States Code, sections 310 and 331, permits the VA to
award compensation for a medical condition which was incurred in or
aggravated by active military service.  An award of a VA rating does not
establish error or injustice in the Army rating.  An Army disability rating
is intended to compensate an individual for interruption of a military
career after it has been determined that the individual suffers from an
impairment that disqualifies him or her from further military service.  The
VA, which has neither the authority nor the responsibility for determining
physical fitness for military service, awards disability ratings to
veterans for conditions that it determines were incurred during military
service and subsequently affects the individual's employability.

18.  Army Regulation 635-200, paragraph 5-17, provides for the separation
of Soldiers who have a physical or mental condition that potentially
interferes with assignment to or performance of duty; however, the physical
or mental condition does not amount to a disability or qualify for
disability processing under the provisions of Army Regulation 635-40.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative discharge was accomplished in accordance
with applicable regulations with no violations of any of the applicant’s
rights.  Accordingly, the applicant’s discharge and the reasons therefore
were appropriate under the circumstances.

2.  The applicant’s contention that he should have been separated by reason
of physical disability has been noted and found to be without merit.
Notwithstanding that there is no evidence in the available records to show
that he was deemed unfit for further military service by reason of physical
disability incurred or aggravated by military service, the documents
submitted by the applicant clearly indicate that his lower back pain and
pelvic tilt existed prior to his entry into the service.

3.  It is also apparent that his service during such a short period did not
rise to the level of an honorable discharge.  While the Board is
sympathetic to the applicant’s position, that in itself does not
sufficiently mitigate granting his request.

4.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, 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.
5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 17 July 1975; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 16 July 1978.  However, the applicant did not file within the 3-
year statute of limitations and has not provided a compelling explanation
or evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__le____  __jed___  __jrm___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.



                                  Lester Echols
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050002442                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051117                                |
|TYPE OF DISCHARGE       |(GD)                                    |
|DATE OF DISCHARGE       |1975/07/17                              |
|DISCHARGE AUTHORITY     |AR635-200/CH5 . . . . .                 |
|DISCHARGE REASON        |EDP                                     |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |488/A24.00                              |
|1.144.2400              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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