RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 April 2008
	DOCKET NUMBER:  AR20080001505 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 that his honorable discharge be changed to a medical discharge. 

2.  The applicant states that he was released from the Army due to a medical condition.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 applicant’s 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 applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s DD Form 1966/1 (Application for Enlistment) shows that his physical profile was 111121.  He enlisted on 13 April 1982 for a period of 3 years.  
3.  A DA Form 4856 (General Counseling Form), dated 9 June 1982, shows the applicant was counseled for failing to shave prior to formation. 

4.  The applicant’s DA Form 2-1 (Personnel Qualification Record), prepared on 19 April 1982, shows the applicant’s physical profile was 111121.  

5.  On 19 April 1982, the applicant executed a FLW Form 1073 (Personnel Information Sheet) wherein he reported that his hearing in his left ear “is not good” and “almost gone” and that it gives him migraine headaches.

6.  On 14 June 1982, the applicant suffered a mild concussion when he slipped and fell in the latrine.  He was hospitalized for 5 days.  The form states after the applicant’s fall he suffered headaches, dizziness, and fainting spells.  The form also states that prior to the applicant’s accident he was a marginal Soldier in both aptitude and motivation. 
7.  A DA Form 4856, dated 20 June 1982, shows the applicant was counseled for missing 5 days of mandatory training (he was in the hospital) and it was recommended that he be recycled to another company to make up for the missed training.

8.  A DA Form 4856, dated 1 July 1982, shows the applicant was interviewed prior to being recycled because he had missed too much training to continue with his company because of medical reasons.  

9.  The applicant submitted a request to be discharged under the Training Discharge Program.  He indicated that he had missed too many days of training, that he suffered headaches and dizziness every day, that his mother wanted him to get out and come home, and that he did not want to be recycled.    

10.  On 2 July 1982, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, paragraph 5-33, the Trainee Discharge Program.  The unit commander cited that the applicant could not meet the minimum standards required for prescribed successful completion of training because of a lack of motivation and self discipline.   

11.  On 2 July 1982, the applicant acknowledged notification of his pending separation and proposed Honorable Discharge.  He indicated that if he did not have sufficient 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.

12.  On 7 July 1892, the intermediate commander recommended that the applicant be discharged under the provisions of Army Regulation 635-200 under the Trainee Discharge Program.  He stated that the applicant did not want to be there, that he was using minor medical problems as a crutch to miss training, that he was not mature enough to make a Soldier at that time, and that he needed to grow up for a couple of years.

13.  On 9 July 1982, the separation authority approved the recommendation for separation and directed that the applicant be furnished an honorable discharge.  

14.  Accordingly, the applicant was honorably discharged on 13 July 1982 under the provisions of Army Regulation 635-200, paragraph 5-39, the Trainee Discharge Program.  He had completed 3 months and 1 day of creditable active service.  

15.  There is no evidence of record which shows the applicant was diagnosed with any medical condition prior to his discharge on 13 July 1982.

16.  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.  

17.  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.  

18.  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.

19.  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 was released from the Army due to a medical condition, there is no evidence of record to support this contention.  His physical profile at the time of his enlistment shows he received a numerical designator of “2” under eyes 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.  There is no medical evidence of record that shows the applicant had any medical condition prior to his discharge on 13 July 1982.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

PM____  __JH____  __KJ____  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.


      __           PM___________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080001505


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508