RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 October 2006
      DOCKET NUMBER:  AR20060004957


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Melinda Darby                 |     |Chairperson          |
|     |Mr. Jeffrey Redmann               |     |Member               |
|     |Mr. Ronald Gant                   |     |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 honorable discharge be
changed to a medical discharge.

2.  The applicant states, in effect, that he informed the reception station
of his family’s history of heart problems, that they accepted a medical
report from a hospital in Tampa, Florida, and that he was cleared to enter
the Army.  He contends that he could not perform his physical duties and he
was given a Trainee discharge.  He states that in 1995 it was determined
that he had coronary artery disease.  He further states that he holds the
Army responsible for his discharge status because they accepted medical
evidence from a hospital in Tampa that cleared him to enter the Army.  He
now knows that it was impossible for the hospital in Tampa to determine
that he had heart disease because they did not run the necessary tests and
that was probably because he did not have any insurance.

3.  The applicant provides a medical report, dated 20 May 2004; and a copy
of his DD Form 214 (Report of Separation from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 16 June 1977.  The application submitted in this case is dated
27 March 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 underwent an enlistment physical examination on 11 March
1977 and was found qualified for enlistment.  He reported that his present
health was “Good” and that medications currently used were “None” in item 8
(Statement of Examinee’s Present Health and Medications Currently Used) on
his Standard Form 93 (Report of Medical History), dated 11 March 1977.
This Standard Form 93 also shows that the applicant reported that he had
chest pain/heart trouble at age 6 or 7.  In addition, an entry was made
that a hospital record shows that his mother stated “Son had heart
condition” but no abnormality recorded.  Item 29 (Heart) on the applicant’s
Standard Form 88 (Report of Medical Examination), dated 11 March 1977,
shows his heart was rated normal.  This Standard Form 88 also states, in
pertinent part, “heart – normal” and “no heart trouble.”

4.  The applicant enlisted on 4 May 1977 for a period of 3 years.

5.  While in basic combat training, on 18 May 1977, nonjudicial punishment
was imposed against the applicant for disobeying a lawful order.  His
punishment consisted of a forfeiture of pay and extra duty.

6.  While in basic combat training, on 3 June 1977, nonjudicial punishment
was imposed against the applicant for breaking restriction.  His punishment
consisted of a forfeiture of pay, restriction, and extra duty.

7.  TRADOC Form 871-R (TDP [Trainee Discharge Program] Counseling), dated 7
June 1977, states the applicant was counseled about his unsatisfactory
performance and failure to meet the minimum standards required of a trainee
which included lack of motivation, having a rebellious attitude, being a
trouble maker in the barracks, not getting along with his peers, and
refusing to adjust to the Army) on 26 May 1977, 28 May 1977, and on 30 May
1977.

8.  On 7 June 1977, the applicant was notified of his pending separation
under the provisions of Army Regulation 635-200, paragraph 5-39, the
Trainee Discharge Program.  The unit commander cited the applicant’s lack
of achievement, motivation, failure to meet the minimum standards of
performance, and his inability to adjust to military service.

9.  On 7 June 1977, the applicant acknowledged notification of his pending
separation and proposed Honorable Discharge.  He indicated that if he did
not have sufficient prior service, he understood that due to non-completion
of requisite active duty time, Department of Veterans Affairs and other
benefits normally associated with completion of honorable active duty
service would be affected.  He elected not to make a statement on his
behalf and he declined a separation medical examination.

10.  On 7 June 1977, the separation authority approved the recommendation
for separation and directed that the applicant be furnished an honorable
discharge.

11.  Accordingly, the applicant was honorably discharged on 16 June 1977
under the provisions of Army Regulation 635-200, paragraph 5-39, the
Trainee Discharge Program.  He had completed 1 month and 13 days of
creditable active service.

12.  There is no evidence in the applicant’s service personnel records
which shows he was diagnosed with any mental or medical condition prior to
his discharge.

13.  Army Regulation 635-200, in effect at the time, set forth the basic
authority for separation of enlisted personnel.  Chapter 5 provides for
separation for the convenience of the Government.  This chapter, in
pertinent part, states that the Trainee Discharge Program provides that
commanders may expeditiously discharge members who lack the necessary
motivation, discipline, ability, or aptitude to become a productive Soldier
when they were voluntarily enlisted in the Regular Army, Army National
Guard, or U.S. Army Reserve; or are in basic combat training or basic
training or in military occupational specialty training (MOS) in advanced
individual training, a service school or on job training prior to the award
of the MOS for which being trained and will have completed no more than 179
days active duty, or initial active duty for training, on current
enlistment by the date of discharge.

14.  Title 10, United States Code, chapter 61, provides disability
retirement or separation for a member who is physically unfit to perform
the duties of his office, rank, grade or rating because of disability
incurred while entitled to basic pay.

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

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that he had a history of heart problems
in his family and that he could not perform his physical duties, evidence
of record shows he underwent an enlistment physical examination on 11 March
1977 and was found qualified for enlistment.  His heart was rated as normal
and the applicant also reported that he was in good health at that time.
Evidence of record shows the applicant declined a separation physical
examination three months later on 7 June 1977.  There is no medical
evidence of record that shows the applicant had any mental or medical
condition prior to his discharge on
16 June 1977.  There is also no evidence of record to show he was ever
medically unfit to perform his duties.  Therefore, there is insufficient
evidence to show the applicant was eligible for physical disability
processing and there is no basis for a medical discharge.

2.  The applicant’s administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.  He had an opportunity to
submit a statement in which he could have voiced his concerns and he failed
to do so.

3.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.

4.  Records show the applicant should have discovered the alleged error now
under consideration on 16 June 1977; therefore, the time for the applicant
to file a request for correction of any error expired on 15 June 1980.  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

MD_____  _JR_____  _RG____  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.




                                  ____Melinda Darby_____
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20060004957                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20071019                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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