RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 July 2007
	DOCKET NUMBER:  AR20070001495 


	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. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Mr. Robert J. Osborn 

Member

Mr. Michael J. Flynn

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, under honorable conditions, be changed to show that he was medically separated due to "medical conditions."

2.  The applicant states, in effect, that his discharge should be changed to show that he was medically separated due to getting his hands crushed between an ammunition trailer and a 1/4 ton truck.  He was never asked what he wanted to do; they just brought the papers for him to sign at the Korean hospital.

3.  The applicant provides no additional documentation in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 1 March 1978, the date he was discharged.  The application submitted in this case is dated 20 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's record shows he enlisted in the Michigan Army National Guard (MIARNG) on 23 December 1974.  He was ordered to initial active duty for training (IADT) on 13 December 1975.  The applicant successfully completed basic combat training at Fort Leonard Wood, Missouri, and advanced individual training at Fort Sill, Oklahoma.  On completion of his advanced training, he was awarded the military occupational specialty (MOS), 13B, Field Artillery Basic.  He was advanced to pay grade E-2 on 23 April 1975.

4.  The applicant was released from IADT on 13 December 1975.  He was transferred to a troop program unit (TPU), of the MIARNG.  He was promoted to pay grade E-3 on 3 March 1976.  He served until he was honorably discharged from the MIARNG on 14 August 1977.  He was involuntarily ordered to active duty in the USAR (United States Army Reserve), in the pay grade of E-2.  

5.  Item 21 (Time Lost), of his DA Form 2-1 (Personnel Qualification Record), shows that he was absent without leave (AWOL) from 7 to 30 September 1977 (24 days).  

6.  The applicant served in Korea from 1 October 1977 to 1 March 1978.

7.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, the applicant's records contain a copy of his DD Form 214 (Report of Separation from Active Duty) which shows that he entered active duty, in the USAR, on 15 August 1977 and was discharged under the provisions of Army Regulation 635-200, chapter 5-31, Expeditious Discharge Program (EDP), on 1 March 1978, in the pay grade of E-2, under honorable conditions.  He was furnished a general discharge.  The Separation Program Designator (SPD) shown as the reason for his discharge is, "JGH" for individuals who are involuntarily discharged under EDP for failure to maintain acceptable standards for retention.  He had a total of 3 years, 9 months, and 24 days of creditable service and 24 days of lost time due to AWOL.

8.  Item 27 (Remarks), of his DD Form 214, indicated that he was separated from service on temporary records and his affidavit.

9.  There is no evidence the applicant requested a separation medical examination prior to his discharge and his medical records are unavailable for review.  There also is no evidence in his records to show he was injured and admitted to a hospital while he served on active duty.

10.  There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  There is no evidence the applicant had entered the physical disability processing system on or before he was processed for the EDP.

12.  The Department of the Army began testing the 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 fell below the standards required for retention in the US Army.  Soldiers could be separated under this program when subjective evaluation or their commander identified 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.

13.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

14.  Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in AR 40-501, chapter 3.  If the medical evaluation board determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board.

15.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

2.  All the facts and circumstances pertaining to his discharge are unavailable for review. 


3.  The Board noted that the applicant’s record contains a properly constituted DD Form 214 which was authenticated by the applicant.  This document identifies the reason for the applicant's discharge and the characterization of his service and the Board presumed Government regularity in the discharge process.

4.  His medical records are unavailable for review and there is no evidence in the available record to show that he requested a separation medical examination prior to his discharge or that he had been referred through medical channels to undergo processing for physical disability reasons.  

5.  The applicant alleges that his hands were crushed between an ammunition trailer and 1/4 ton truck.  There is no evidence, and the applicant has provided none, to show that he received an injury and was admitted to a hospital in Korea while he served on active duty.  

6.  The applicant alleges that he was never asked what he wanted to do and that they brought papers for him to sign at the hospital.  There is no evidence, and the applicant has provided none, to support his allegations.

7.  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 failed to submit evidence that would satisfy this requirement.

8.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 1 March 1978; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 28 February 1981.  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

__MJF___  __RJO__  __J_____  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.




____John T. Meixell______
          CHAIRPERSON




INDEX

CASE ID
AR29970001495
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
230070719
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19780301
DISCHARGE AUTHORITY
AR 635-200, chapt 5-31/EDP 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.