RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 January 2006
      DOCKET NUMBER:  AR20050006355


      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. Maria C. Sanchez              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Kenneth L. Wright             |     |Chairperson          |
|     |Mr. Dale E. DeBruler              |     |Member               |
|     |Mr. Qawly A. Sabree               |     |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 that his "Unfulfilled Enlistment Commitment" be
changed to show he was discharged under medical reasons.

2.  The applicant states that he was injured during basic training;
therefore, the reason should be changed to show medical.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation
from Active Duty), and a two-page letter, dated 24 March 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 29 September 1975, the date of his separation from active duty.
 The application submitted in this case is dated 19 April 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 limitations 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.  The applicant enlisted in the Regular Army on 20 June 1975 for a period
of four years.

4.  The applicant's service records contain a Standard Form 600
(Chronological Record of Medical Care) which shows a couple of entries,
dated 18 August 1975. The first entry shows the applicant was experiencing
pain in his right knee.  The entry also shows that during the examination,
it was noticed that he had an enlarged right tibial tuberosity.  Another
entry dated the same day, shows that the examining medical officer
diagnosed the applicant with Osgood-Schlatter disease [a disease of the
knee and the point of attachment of a muscle or tendon to the end of a
bone, the tibia in this case.]

5.  A DA Form 3349 (Medical Condition – Physical Profile Record), dated
19 August 1975, gave the applicant a permanent physical profile of "P2
under L" [permanent 2 profile under the lower extremities] and indicated
that the applicant has "Osgood Schlatters disease (R)."  This form also
shows the applicant could not march over one mile and could not run over
1/2 mile and that these conditions were permanent.  This form also shows
the applicant is medically qualified for limited duty.  This document was
authenticated by a Medical Corps Officer.

6.  A Fort Polk Form 434 (Statement), dated 8 September 1975, shows the
applicant was informed by the Classification Interview Personnel at the USA
Training Center, Fort Polk, Louisiana, that his enlistment commitment for
"Combat Arms Cash Bonus" could not be fulfilled by reason of "Physical
Disability P2 under L profile."  This form shows that the applicant had the
option to either request immediate separation or to waive his enlistment
commitment or waive a portion of his enlistment commitment and select
alternate options for which he is qualified and complete the term of
service for which he enlisted.  The applicant understood and acknowledged
his options and requested immediate separation under the provisions of
paragraph 5-32 of Army Regulation 635-200 (Personnel Separations – Enlisted
Personnel).  The applicant authenticated this document with his signature.

7.  A DA Form 2496 (Disposition Form), dated 8 September 1975, shows the
applicant's request for discharge due to an unfulfilled enlistment
commitment was approved.  This form also shows that the authority for
separation is paragraph 5-32 of Army Regulation 635-200.

8.  A DA Form 2496 (Disposition Form), dated 16 September 1975, shows the
applicant underwent a mental status examination.  The examining medical
officer found the applicant to have met the retention standards and there
is no psychiatric disease or defect which would warrant disposition through
medical channels.  The medical officer continues that the applicant is
mentally responsible, able to distinguish right from wrong and to adhere to
the right, and has the mental capacity to understand and participate in
board proceedings.

9.  The applicant was separated on 29 September 1975, under the provisions
of paragraph 5-32 of Army Regulation 635-200, by reason of unfulfilled
enlistment commitment and issued an Honorable Discharge Certificate.  He
had served 3 months and 10 days of total active service.

10.  The applicant submitted a two-page letter, dated 24 March 2005,
wherein he states that he twisted his right knee during basic training at
Fort Polk, Louisiana.  The applicant continues that he was examined by
medical personnel and diagnosed with "Osgood-Slaughters" and was informed
that the condition is a "tearing or deterioration of the tendon away from
the bone in his right knee."

11.  The applicant further stated that he was put on limited duty until a
determination was made regarding his service in the Army.  He continues
that he was given an honorable discharge, but indicates that he was too
inexperienced at that time to understand that accepting the discharge
offered would forfeit all his military benefits.

12.  The applicant stated in conclusion that he was "duped into accepting
an Unfilled Enlistment Commitment discharge, when in fact I should have
received a medical discharge for an injury that occurred while on active
duty."

13.  Army Regulation 635-200, in effect at the time, set forth the basic
authority for the separation of enlisted personnel for the convenience of
the government.  Paragraph 5-32 indicates that when it is determined that
the enlistment commitment was erroneous and/or cannot be fulfilled,
separation may be requested by the individual.  Non-prior-service Regular
Army personnel serving on their first enlistment may request immediate
separation.

14.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of
Medical Fitness) 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 if reclassification action is warranted.  Four
numerical designations (1-4) are used to reflect different levels of
functional capacity in six factors (PULHES): P-physical capacity or
stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-
eyes, and S-psychiatric.  Numerical designator "1" under all factors
indicates that an individual is considered to possess a high level of
medical fitness and, consequently, is medically fit for any military
assignment.  Numerical designators "2" and "3" indicate that an individual
has a medical condition or physical defect which requires certain
restrictions in assignment within which the individual is physically
capable of performing military duty.  The individual should receive
assignments commensurate with his or her functional capacity.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation), paragraph 3-1, provides that the mere presence of an
impairment does not, of itself, justify a finding of unfitness because of
physical disability.  In each case, it is necessary to compare the nature
and degree of physical disability present with the requirements of the
duties the member reasonably may be expected to perform because of his or
her office, rank, grade or rating.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his honorable discharge should be changed
to a medical discharge based on an injury that occurred during training.

2.  Evidence shows the applicant sought medical attention when he was
experiencing pain in his right knee upon examination, medical authorities
determined the applicant suffered from Osgood-Schlatter's disease which was
a permanent condition.

3.  Evidence of record shows the applicant was given a permanent profile
"P2" for his lower extremities, but was found to be medically fit for
continued military service.

4.  Evidence of record shows that based on regulation, the medical
condition and resulting physical profile disqualified the applicant from
the Combat Arms Cash Bonus.

5.  Records show the applicant was properly given two options.  The first
option was to request immediate separation for an unfulfilled enlistment
contract.  The second option was to waive his enlistment commitment or
waive a portion of his enlistment commitment and selecting alternate
options for which he qualified and completing the term of enlistment for
which he enlisted.

6.  Records show he selected immediate separation under the provisions of
paragraph 5-32 of Army Regulation 635-200 for unfulfilled enlistment
commitment.

7.  Evidence shows the applicant’s administrative separation was
accomplished in compliance with applicable regulations and there is no
indication of procedural errors that would tend to jeopardize his rights.
The discharge proceedings were conducted in accordance with law and
regulations applicable at the time and the character of the discharge is
commensurate with the applicant's overall record of military service.

8.  Based on all the facts on this case, the reason for discharge was
appropriate particularly since the applicant elected immediate separation
when he found out that his enlistment commitment could not be fulfilled.



9.  In order to justify correction of a military record the applicant must
satisfactorily show, or it must otherwise satisfactorily appear, that the
record is in error or unjust.  The applicant has failed to submit
sufficient evidence that would satisfy this requirement.

10.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 29 September 1975; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 28 September 1978.  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

__KLW__  __DED___  _KLW___  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.




                                      _Kenneth L. Wright___
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050006355                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1975/09/29                              |
|DISCHARGE AUTHORITY     |AR 635-200, para 5-32                   |
|DISCHARGE REASON        |Unfulfilled Enlistment Commitment       |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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