RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 July 2007
	DOCKET NUMBER:  AR20070001273 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. Eric Andersen

Chairperson

Mr. Scott Faught

Member

Ms. Ernestine Fields

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 before he was railroaded out of advanced individual training (AIT) his medical case was headed before the Medical Evaluation Board.  He contends that he was a victim of racial and “disability” discrimination.

3.  The applicant provides a DA Form 3349 (Medical Condition – Physical Profile Record), dated 23 March 1976. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 31 March 1976.  The application submitted in this case is dated 18 January 2007.

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 on 29 December 1975 for a period of 3 years.  He successfully completed basic combat training.  

4.  While in AIT, between 5 March 1976 and 23 March 1976, the applicant was counseled on four occasions for excessive sick calls/appointments and poor performance in training.  One counseling statement, dated 8 March 1976, states, in pertinent part, that “The doctors still insist that there is nothing physically wrong with PVT [the applicant’s name].”      

5.  The applicant was notified of his pending separation under the provisions of Department of the Army (DA) Message 011510Z August 1973 Subject:  Evaluation and Discharge of Enlistees Before 180 Active Duty Days (i.e. Trainee Discharge Program).  The unit commander cited the applicant’s mediocre performance in training, his constant requirement for supervision, and his excessive sick calls
6.  The applicant provided a DA Form 3349, dated 23 March 1976, which shows he was issued a permanent profile of “2” under lower extremities for symptomatic flat feet.

7.  On 24 March 1976, the applicant acknowledged notification of his proposed honorable discharge from the Army, elected not to consult with counsel, and elected not to make a statement on his behalf.  He also elected not to undergo a separation medical examination.

8.  On March 25, 1976, the separation authority approved the recommendation for separation and directed that the applicant be furnished an honorable discharge.   

9.  Accordingly, the applicant was discharged on 31 March 1976 with an honorable discharge under the provisions of DA Message 011510Z August 1973. He had completed 3 months and 3 days of creditable service.

10.  There is no evidence of record which shows the applicant was being processed for disability proceedings prior to his discharge.

11.  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 AIT, 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.  

12.  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.  

13.  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.

14.  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.  There is no evidence of record which shows that the applicant was a victim of racial discrimination.  

2.  Although the applicant contends that before he was railroaded out of AIT his medical case was headed before the Medical Evaluation Board, there is no evidence of record to support this contention.  The profile provided by the applicant does not show that he was medically unfit to perform his duties, it shows he received a numerical designator of “2” under lower extremities which means he had a medical condition or physical defect which required certain restrictions in assignment within which he was physically capable of performing his military duty.  Evidence of record also shows the applicant declined to undergo a separation physical examination on 24 March 1976.  Therefore, there is insufficient evidence to show the applicant was eligible for physical disability processing and there is no basis for a medical discharge.   

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

5.  Records show the applicant should have discovered the alleged injustice now under consideration on 31 March 1976; therefore, the time for the applicant to file a request for correction of any injustice expired on 30 March 1979.  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

EA_____  ___SF___  __EF____  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.


____Eric Andersen_____
          CHAIRPERSON




INDEX

CASE ID
AR20070001273
SUFFIX

RECON

DATE BOARDED
20070703
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19760331
DISCHARGE AUTHORITY
DA Message 011510Z August 1973
DISCHARGE REASON
Trainee Discharge Program
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
108.0000
2.

3.

4.

5.

6.