IN THE CASE OF:	  

	BOARD DATE:	  22 July 2008

	DOCKET NUMBER:  AR20080004013 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his military records to show that he was separated from the service for medical reasons.

2.  The applicant states, in effect, that he was bullied out of the United States Army because of his injury and should have been medically discharged with a disability rating. 

3.  The applicant provides copies of his Report of Separation from Active Duty (DD Form 214); Congressional Inquiry, dated 1993, to locate military medical records; Department of Veterans Affairs (VA) records and decisions; United States Post Office correspondence regarding employability; Leave and Earnings Statements from 9 February 1977 through 31 Jul 1977, and from 1 June 1978 through 12 September 1978; Separation Packet and orders; and service medical records. 

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.  On 9 February 1977, the applicant enlisted in the Regular Army.  He was subsequently assigned to Fort Leonard Wood, Missouri, for basic combat training.

3.  On or about 30 March 1977, the applicant injured his left knee during training resulting in a small chip fracture.  His leg was put in a cast and he was instructed on the proper use of crutches.  

4.  On or about 29 April 1977, the applicant was assigned to Fort Sam Houston, Texas for advanced individual training as a medical specialist.  

5.  On 11 May 1977, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for dereliction of duties.  The punishment included a forfeiture of $97.00 pay per month for 
1 month, and 14 days extra duty.

6.  On 21 July 1977, the applicant was assigned for duty as a company aid man with the 1st Battalion, 19th Infantry Regiment, 25th Infantry Division, in Hawaii.

7.  On 5 June 1978, the applicant underwent knee surgery to remove loose bodies in his left knee.  The description of the operation shows that no loose bodies were found.  He was discharged on 18 July 1978 from the hospital with a temporary physical profile limiting his activities to light duty.  He was not to run, jump, climb, do deep knee bends, squat, or do any long walking for 3 months.

8.  On 21 August 1978, the applicant’s commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, paragraph 5-31.  The commander stated that the reasons for his action were the applicant’s poor attitude or hostility toward the military as demonstrated by his uncooperative attitude, disrespectful language, contempt toward his noncommissioned officers, his argumentative nature and an unwillingness to change his ways.  The commander further stated that the applicant's lack motivation was manifested by his failure to respond to counseling and advice.  He showed an inability to adapt socially or emotionally, as demonstrated by his failing to live up to his responsibilities as a Soldier.  


9.  The commander’s recommendation included the following record of counseling which was acknowledged and signed by the applicant: 

	a.  11 August 1977  failed to go to appointed place of duty;

	b.  31 August 1977  job performance;

	c.  21 November 1977  late for physical training formation;

	d.  29 November 1977  assault [no specifics provided];

	e.  30 January 1978 absent from physical training formation; and

	f.  9 August 1978 disrespect to noncommissioned officer.

10.  On 29 August 1978, the appropriate authority approved the recommendation and directed that he be issued a General Discharge Certificate. 

11.  Accordingly, on 12 September 1978, the applicant was discharged under honorable conditions and issued a General Discharge Certificate.  He had completed 1 year, 7 months and 4 days of creditable active service.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-31 of that regulation, in effect at the time, provided, in pertinent part, for the separation of personnel because of unsatisfactory performance or conduct (or both).  This policy applied to individuals who had demonstrated that they were not qualified for retention because they could not adapt socially or emotionally to military life, or because they lacked the aptitude, ability, motivation or self discipline for military service, or that they had demonstrated characteristics not compatible with satisfactory continued service.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides, in pertinent part, that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit. This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.   The applicant has not provided any convincing evidence showing that he was bullied or otherwise mistreated while serving on active duty or that any medical condition was unfitting for retention in the military. 

4.  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 has failed to submit evidence that would satisfy the aforementioned requirement.

5.  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

____X___  ___X____  ___X____  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.





__________ _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.

ABCMR Record of Proceedings (cont)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080004013



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