IN THE CASE OF:	  

	BOARD DATE:	 

	DOCKET NUMBER:  AR20080004943 


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, in effect, that his discharge be changed to a medical discharge.

2.  The applicant states, in effect, that he feels he should have been issued a medical discharge and/or discharged for medical reasons; however, he was discharged maliciously – due to malicious and concocted/falsified information.

3.  The applicant states, in effect, his discharge wasn’t issued for the reason stated in the attached letters dated 29 August 1974 and 13 September 1974.  He only got to see the letter for 29 August 1974 and disputed the statements made in the letter regarding the claimed counseling which is proven to be falsehood and/or no such records can be found in his Army file as claimed.  Being deprived of needed follow-up medical care was the actual motive for his discharge.

4.  The applicant claims he did not contest the injustice sooner due to the fact he did not know whether the concocted reports were actually contained in his file as claimed until 2006 or 2007; otherwise, he would have had that corrected while he was still in the Army.

5.  In support of his request, the applicant provides six separate “packets” of evidence titled:  (a) Application for Correction of Military Record, DD Form 149, with 19 pages of documents; (b) a “packet” with a cover sheet with the verbiage, “This is a copy of my enlistment contract which ended via racial/prejudicial malice 

and fabricated statements and/or concocted reports” [the “packet” contains 13 pages of documents]; (c) a “packet” with a cover sheet with the verbiage, “This is a summary of my service-connected conditions/ailments associated with them” [the “packet” contains 24 pages of documents]; (d) a “packet” with a cover sheet with the verbiage, “This is a summary of the things the VA (Department of Veterans Affairs) has been doing for the past 32 years regarding my service-connected ailments” [the “packet” contains 29 pages of documents]; (e) a “packet” with a cover sheet with the verbiage, “According to this, my rights were violated in the Army from August 19, 1974 to September 23, 1974” [the “packet” contains 5 pages of documents]; and (f) a “packet” with a cover sheet with the verbiage, “This is proof that racism still exists in the Army just as it existed in 1974” [the “packet” contains 5 pages of documents].

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 enlisted in the US Army Reserve Delayed Entry Program on 17 January 1974.  On 19 June 1974, he enlisted in the Regular Army for 3 years. He successfully completed basic combat training at Fort Knox, Kentucky.  On completion of his basic combat training, he was sent to Fort Gordon, Georgia to undergo training in the military occupational specialty (MOS) 36C, Lineman.

3.  The evidence of record shows the applicant arrived at Fort Gordon and signed into his unit on 19 August 1974.  The record further shows he did not complete his advanced individual training.  When the applicant was discharged, he held the MOS 09B, Trainee.

4.  On 29 August 1974, the applicant’s unit commander notified him he was initiating action to discharge him from the Army.  The reasons were that he was counseled by his platoon sergeant on 20 August 1974 and the unit first sergeant 

on 21 August 1974 reference to his apathetic attitude and family problems.  His apathetic attitude was such that training him at the time was impossible.  He, in the commander’s opinion, had too many outside problems that contributed to his not being a trainable Soldier.

5.  The applicant was notified that if his discharge were approved, he would be issued an honorable discharge; but, the final decision in his case rested with the discharge authority.

6.  The applicant was further notified that due to his non-completion of requisites of active duty time, his VA and other service benefits normally associated with completion of honorable active duty service would be affected.  The commander gave him as an example - that he would not be eligible for educational benefits under the GI Bill of Rights.

7.  On 29 August 1974, the applicant acknowledged notification of his proposed discharge from the Army.  The applicant indicated he did not desire to have counsel assist him in explaining the discharge procedures or in making statements or rebuttals on his behalf.  The applicant indicated he did not desire to have a separation medical examination (emphasis added) and he further indicated he did not desire to make a statement or submit a rebuttal in his own behalf.

8.  The commander’s recommendation for the applicant’s discharge was forwarded to the battalion commander for consideration on 29 August 1974.

9.  On 13 September 1974, the battalion commander recommended approval of the applicant’s proposed discharge to the school brigade commander.  In his letter of endorsement, the battalion commander stated he had reviewed the applicant’s file.  Contained therein were counseling reports by his platoon sergeant on 20 August 1974, his first sergeant on 21 August 1974, and his commander on 26 August 1974.  The battalion commander included in his endorsement that the applicant was an 18-year old Soldier with an eleventh grade education and personal and family problems which contributed to his apathetic attitude towards the Army.  He summarized by stating the applicant was of no value to the Army and a burden to his unit.

10.  On 17 September 1974, the Headquarters, School Brigade Commander, a Colonel, approved the applicant’s discharge from the Army under the provisions of DA Message 011510Z August 1973, Subject:  Evaluation and Discharge of 

Enlistees Before 180 Active Duty Days.  The Brigade Commander directed the applicant be issued an Honorable Discharge and that the SPN (Separation Program Number) 770 be applied to his DD Form 214.

11.  The applicant was discharged in the rank and pay grade of Private, E-2, on 23 September 1974, under the provisions of the Army Trainee Discharge Program.  The applicant's service was characterized as "Honorable."  On the date of his discharge, the applicant had completed 3 months and 5 days active military service, with no time lost.

12.  On 23 September 1974, the applicant completed a DA Form 2496, Disposition Form, Subject:  Request/Decline Narrative Reason for Separation.  The applicant was provided a letter by the Chief, Transfer Point, which states, “The reason for your separation from active duty on 23 September 1974 was DA Message DAPE-MPE 011510Z Aug 73, Trainee Discharge Program, RE (Reentry Code) 3.”

13.  On 23 September 1974, the applicant partially completed a DA Form
3082-R, Statement of Medical Condition.  On this form he indicated his medical condition had changed; however, he did not indicate how his health had changed.  In the space on the form to indicate the date of his last separation examination, he entered “NA.”

14.  The applicant’s DD Form 722, Health Record, is in the applicant’s service record.  Contained within this record jacket are the applicant’s PHS-731, International Certificates of Vaccination; a Standard Form 601, Health Record – Immunization Record; and a PRS Inquiry Result Screen Record prepared by the National Archives and Records Administration which indicates that hospital treatment records requested by the applicant had not been found.

15.  Along with his application, the applicant submitted a Standard Form 513, Clinical Record – Consultation Sheet which indicates that on 2 August 1974 he reported to the Consolidated Troop Medical Center and received treatment for an injury to his left wrist.

16.  On 5 August 1974, the applicant was issued a “T3” temporary profile for his upper extremities.  The individual was diagnosed as having wrist strain.  The profile was written for a period of ten days and was to expire on 15 August 1974.

17.  On 6 August 1974, a radiographic report and examination of his left wrist was requested for trauma and a report of a fracture.  The results of the x-ray are not available nor is a report of the findings.

18.  In a letter addressed to the ABCMR on 7 January 2008, the applicant described long term difficulties he has encountered in obtaining compensation for long term chronic ailments which are the result of service-connected injuries and trauma for which he was deprived follow-up medical care for while he was in the Army.  He contends that the fact there are no medical records for the period of his service has caused him 33 years of hardship and has hindered him from getting the proper medical tests, treatments, medications and or the compensation he is due.

19.  The applicant adds that the reason for his discharge is also in question.  It was said he was granted/issued the discharge because of personal family problems and an apathetic attitude toward the Army, that he was of no value to the Army, and a burden to his unit … it was verbally said to him he was a worthless nigger of no value to the Army and a burden to his unit.

20.  The applicant wrote that there were also claims of counseling reports said to be in his Army files; however, none of these said records can be found by the National Archives and Records Administration or the National Personnel Records Center.  No counseling records can be found for 20 August 1974 through 26 August 1974, no medical records can be found for 19 August through 23 September 1974 which proves he didn’t receive the follow-up medical tests, treatments, and medications he needed for his painful injuries/trauma which was gross negligence and the sole reason he was wrongfully discharged from the Army.

21.  In this letter, the applicant repeated his claim he should have been discharged from the Army for medical reasons but instead he was discharged because of prejudice/racial malice – malice that has caused him to suffer in numerous ways for the past 33 years.

22.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  

23.  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 (MEB) determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a Physical Evaluation Board (PEB).
24.  PEBs 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.

25.  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/her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

26.  At the time of the applicant's service, the Army's Army Regulation 340-18-Series provided policy and procedures for the records management program in the Army under the Army Functional Files System (TAFFS).  Army Regulation 340-18-7 provided policy and procedures for the initiation, maintenance, and disposition of military personnel discipline files.  Documents relating to the status and disposition of cases involving disciplinary or possible disciplinary action (emphasis added), admonition or reprimand of military personnel, which included cards, rosters, and similar or related documents, were filed in a file folder with the number and title:  "720-01  Disciplinary Status Files."  Documents that were filed in this folder were labeled for destruction after one year, or on discontinuance, whichever was first.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention he should have been issued a medical discharge and/or discharged for medical reasons is not supported by the evidence.  In the applicant’s service personnel record are four medically-related documents, none of which indicate the applicant was referred to or should have been referred to an MEB or PEB for processing.

2.  The applicant provided three medically-related documents that were created by the Army at the time of his service.  The applicant did receive medical attention for a left wrist strain.  The left wrist was x-rayed; however, the record 
does not contain, nor did the applicant provide, a copy of the results of the x-ray. The evidence does show the applicant was issued a “T3” physical profile with assignment restrictions that expired on 15 August 1974, four days before he arrived at and signed in to his advanced individual training unit at Fort Gordon.


3.  The evidence shows the applicant was notified of the reasons for his proposed and eventual discharge, and he acknowledged the notification.  He now claims that he was not discharged for the reasons shown on those documents and that he was discharged due to malicious and concocted/falsified information.

4.  The applicant disputes he was ever counseled by his platoon sergeant, first sergeant, and unit commander.  Because he has made efforts to locate copies of these documents at the National Archives and Records Administration and the National Personnel Records Center and they are not available to be provided to him, he concluded that they did not exist; however, these documents were provided to his battalion commander by his unit commander and were reviewed in his file by the battalion commander, a lieutenant colonel.  The applicant would now, by default, ask the Board to believe there was a conspiracy formed against him because of his racial background, to get him out of the service, and deny him medical follow-up treatment.

5.  Regulations in effect at the time of the applicant's service did not require that documents related to a Soldier's discipline or possible discipline be retained indefinitely.  These documents were destroyed after one year of their creation or their discontinuance, whichever came first.  Assuming that the Army's records maintenance program guidelines were followed correctly by the applicant's former unit, and it appears they were, the counseling documents referred to were destroyed and the evidence shows they were not of the sort to be retired to the National Records Center and retained permanently.

6.  At the time the applicant was being processed for discharge, he had the opportunity to get a separation physical examination and if he were being denied medical follow-up treatment for injuries he received and was still ailing from, he could have received the needed treatment at that time and it is likely separation processing would have been halted either temporarily or indefinitely until his medical condition(s) were satisfactorily treated and he was rehabilitated or until a decision could be made for his disposition, if needed, through medical channels.  Instead, the evidence shows the applicant opted not to undergo a separation physical examination in favor of a quicker departure from the Army.

7.  It appears that out of his frustration with the VA and with the Army for the decisions he made for himself in 1974, the applicant is now attempting to base his denial for service-connected compensation and other entitlements to treatment in VA facilities as being racially-motivated rather than what it is – a denial of disability compensation and other entitlements based on service performed and connected to this military service.

8.  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.

9.  In view of the foregoing, there is no basis for granting the applicant's request for a medical discharge.

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)                                         AR20080004943



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080004943



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1