RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 29 January 2008
DOCKET NUMBER: AR20070012535
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. Deyon D. Battle
Analyst
The following members, a quorum, were present:
Ms. Shirley L. Powell
Chairperson
Mr. Paul M. Smith
Member
Mr. Larry C. Bergquist
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, correction of his records to show that he was discharged by reason of physical disability.
2. The applicant states, in effect, that he should have been discharged by reason of physical disability.
3. The applicant provides in support of his application a copy of his enlistment Report of Medical Examination, dated 19 March 1974; a copy of his Medical Condition Physical Profile Records; and copies of his Records of Medical Care.
CONSIDERATION OF EVIDENCE:
1. 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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 19 March 1974, the applicant underwent a medical examination for the purpose of enlistment in the Army. Although the examination revealed that he had a condition requiring medical attention, he was found to be medically qualified for enlistment in the Army.
3. On 30 March 1974, the applicant enlisted in the Army in Jacksonville, Florida, for 2 years, in the pay grade of E-1. He went on to successfully complete his basic combat training.
4. On 2 October 1974, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13-5b for unsuitability. The commander cited apathy, ineptness, inability to train successfully due to awkwardness, and lack of readiness of skills as the basis for his recommendation. The commander also cited four records of counseling during the month of September 1974 as part of his recommendation for discharge.
5. The applicant acknowledged receipt of the recommendation for discharge on 17 October 1974. After consulting with counsel, he waived his right to submit a statement in his own behalf.
6. The applicant underwent a mental status evaluation on 18 October 1974 and he met the retention standards prescribed in Army Regulation 40-501.
7. The appropriate authority approved the recommendation for discharge on 22 October 1974 and he directed the issuance of a general discharge.
8. Accordingly, on 13 November 1974, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 13-5b, due to unsuitability. He had completed 7 months and 14 days of total active service and he was furnished a General Discharge Certificate.
9. A review of the available medical records fails to show that the applicant had any medical conditions that would have required his being process for discharge through medical channels.
10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsuitability, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.
11. 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.
12. Army Regulation 40-501, at chapter 3, provides standards for medical retention. Basically, members with conditions as severe as listed in this chapter are considered medically unfit for retention on active duty.
DISCUSSION AND CONCLUSIONS:
1. The medical evidence of record indicates that the applicant was medically fit for retention at the time of his separation. He has submitted no probative medical evidence to the contrary.
2. The applicant did not have any medically unfitting disability which required physical disability processing. Therefore, there is no basis for physical disability retirement or separation.
3. In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
4. In view of the foregoing, there is no basis for granting the applicant's request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__LCB__ __PMS__ __SLP ___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
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.
___ Shirley L. Powell___
CHAIRPERSON
INDEX
CASE ID
AR20070012535
SUFFIX
RECON
DATE BOARDED
20080129
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1. 177
108.0000/DISABILITY SEP OR RET
2.
3.
4.
5.
6.
ARMY | BCMR | CY2009 | 20090003661
The applicant requests the reason and authority for his discharge on 16 December 1974 be changed to a medical discharge. 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. _______ _ _x______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ARMY | BCMR | CY2004 | 20040011227C070208
This medical record indicates the applicant applied for separation from the military under the provisions of Army Regulation 40-501 due to asthma. Chapter 7 of this regulation 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...
ARMY | BCMR | CY2010 | 20100023317
The applicant requests correction of his records to show he was medically retired with full benefits instead of being discharged under Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, by reason of unsuitability with a general discharge. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) currently in effect establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and...
ARMY | BCMR | CY2011 | 20110002294
There is no evidence in the applicant's personnel service record or available medical record which shows the applicant was treated for an overdose. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) 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,...
ARMY | BCMR | CY2012 | 20120022239
The applicant requests an upgrade of his general discharge to an honorable discharge for medical reasons. The applicant was accordingly discharged on 23 September 1976. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he was separated from the service with an Honorable Discharge Certificate on 23 September 1976.
ARMY | BCMR | CY2010 | 20100007791
The applicant requests, in effect, correction the narrative reason for separation on his DD Form 214 (Report of Separation from Active Duty) to show he was medically discharged in lieu of being discharged due to "unsuitability - traits of character or behavior disorder." The applicant was advised of his right to have his case considered by a board officers, to appear in person before a board of officers, to submit statements in his own behalf, to be represented by counsel, to waive any of...
ARMY | BCMR | CY2011 | 20110015062
In support of his request, the applicant provides his VA rating decision, dated 8 February 2005, and VA medical records, spanning the period from 1 January to 1 June 2004, that show the applicant was granted service connection for post-traumatic stress disorder (50%), effective 22 June 2001. The evidence of record shows the applicant chose not to submit any statements in response or rebuttal to any of his 11 counseling sessions, the bar to reenlistment, or at the time he was notified by the...
ARMY | BCMR | CY2001 | 2001059911C070421
I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual. The applicant requests correction of military records as stated in the application to the Board and as restated herein. There is no evidence, nor has the applicant provided any, to indicate that his discharge was unfair or unjust, or that he was physically unfit at the time of his discharge, and as such there is not basis to...
ARMY | BCMR | CY2001 | 2001063822C070421
On 11 June 1969, the applicant’s commander submitted a recommendation to discharge the applicant from the service under the provisions of Army Regulation 635-212, for unsuitability. In view of the foregoing, the general discharge issued to the applicant at the time of his separation is inconsistent with the standards for discharge for unsuitability which became effective in June 1976. Since these new standards retroactively authorized an honorable discharge in cases where soldiers...
ARMY | BCMR | CY2014 | 20140018231
The applicant states: * he was found unfit to perform and continue his military service because of physical disability due to three hernia injuries * his multiple injuries interfered with his ability to perform his job requirements * the derogatory narrative reason for separation and codes on his DD Form 214 misconstrues the real reason for his separation * he was instead chaptered out for motivational problems and/or a defective attitude when the real reason should have been his chronic...