RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 August 2006
      DOCKET NUMBER:  AR20060001179


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Jerome L. Pionk               |     |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 administrative separation
be changed to a disability separation.

2.  The applicant states that his separation under the provisions of Army
Regulation 635-200, paragraph 5-39 came after he began going on sick call
for ankle and foot problems and for anxiety and depression.  He was not
able to meet his duty requirements and should have been medically boarded.

3.  The applicant provides one page of a Standard Form (SF) 93 (Report
      of Medical History) dated 22 October 1976; one page of an SF 93 dated
             8 December 1976; one page of an SF 88 (Report of Medical
Examination) dated 8 December 1976; a letter, dated 28 July 2006, from
Associate Benefit Group; Department of Veterans Affairs Compensation and
Pension Examination Reports dated 20 October 1995, 16 June 1997, 7 October
1997, and 23 October 1997; a letter, dated 18 December 1998, from Edwin A.
K___ (podiatrist); and a nerve conduction study/electromyography report
dated 22 July 2002.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 13 December 1976.  The application submitted in this case
is dated 10 January 2006.

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 2 November 1976.  His
service medical records are not available.  The Department of Veterans
Affairs Compensation and Pension Examination report dated 7 October 1997
indicates that he was noted to have pes planus (flatfoot) on entrance to
the military.

4.  On 24 November 1976, the applicant was counseled regarding his lack of
motivation, his constant lateness to formation, and his slowness in all
things he did, including anything done in the barracks.  He was counseled
on 29 November 1976 for having difficulty in executing all his drill
movements and his inability to fire his rifle.

5.  On 30 November 1976, the commander initiated separation action on the
applicant under the provisions of Army Regulation 635-200, paragraph 5-39,
Trainee Discharge Program.  The commander cited as his specific reasons for
the action the applicant’s inability to learn and lack of motivation.

6.  On 30 November 1976, the applicant acknowledged notification of the
action, elected not to make a statement or submit a rebuttal, and requested
a final type physical exam.

7.  On 3 December 1976, the appropriate authority approved the
recommendation and directed the applicant be given an Honorable Discharge
Certificate.

8.  On 8 December 1976, the applicant completed a separation physical
examination.  He provided one page of an SF 88 which indicated his ankles
hurt constantly while standing for long periods of time.  He provided one
page of an SF 89 wherein he indicted that he had foot trouble, depression
or excessive worry, and nervous trouble.

9.  On 13 December 1976, the applicant was discharged with an honorable
discharge, in pay grade E-1, under the provisions of Army Regulation 635-
200, paragraph 5-39.  He had completed 1 month and 12 days of creditable
active service and had no lost time.

10.  Army Regulation 635-200 (Enlisted Personnel) sets forth the basic
authority for the separation of enlisted personnel from the Army.  At the
time, paragraph  5-39 governed the Trainee Discharge Program.  That program
provided for the separation of service members who lacked the necessary
motivation, discipline, ability, or aptitude to become productive Soldiers
or failed to respond to formal counseling.  The regulation essentially
required that the service member to have been voluntarily enlisted, be in
basic, advanced individual, on the job or service school training prior
award of a military occupational specialty, and must not have completed
more than 179 days of active duty on their current enlistment by the date
of separation.  The regulation provided that Soldiers could be separated
when they demonstrated they were not qualified for retention due to failure
to adapt socially or emotionally to military life, could not meet minimum
standards prescribed for successful completion of training because of lack
of aptitude, ability, motivation, or self-discipline; of demonstrated
character and behavior characteristics not compatible with satisfactory
continued service.

11.  Army Regulation 635-40 governs the evaluation of physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  In pertinent part, it states that the mere presence
of an impairment does not, of itself, justify a finding of unfitness
because of physical disability.  It 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.

12.  Army Regulation 40-501 (Standards of Medical Fitness), at the time
stated that flatfoot, in pronounced cases with decided eversion of the foot
and marked bulging of the inner border due to inward rotation of the
astragalus, regardless of the presence or absence of symptoms, was a reason
for rejection for enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was separated under the
Trainee Discharge Program for an inability to learn and a lack of
motivation.  His service medical records are not available, and there is no
other evidence to show he was treated while in the Army for foot and ankle
conditions or for anxiety and depression.  There is no evidence of record
available to show that his service was interrupted because he was medically
unfit due to those conditions and no evidence of record to show that those
conditions resulted in his inability to learn and in his lack of
motivation.

2.  There is no evidence of record available to show that the applicant’s
pes planus rendered him medically unfit for procurement.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 13 December 1976; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on    12 December 1976.  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

__lds___  __ktm___  __jlp___  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.




                                  __Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001179                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060822                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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