IN THE CASE OF:
BOARD DATE: 5 August 2008
DOCKET NUMBER: AR20080009971
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 honorable discharge be changed to a medical discharge due to damages while in training.
2. The applicant states that he damaged both his knees while in basic training and he was told by a medical doctor that he would get a medical discharge. He thought he had a medical discharge and would get benefits. The applicant further states that he was lied to about what he was entitled to prior to his discharge.
3. The applicant provides no additional documentation in support of this case.
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. The applicant enlisted in the Regular Army on 11 November 1975. He successfully completed basic training and did not complete advanced individual training.
3. On 9 March 1976, the commander initiated separation action on the applicant under the provisions of Army Regulation 635-200, paragraph 5-39, Trainee Discharge Program. The commander cited as his specific reasons for the action the applicants poor attitude, lack of self discipline, and unwillingness to perform even the most minor of details without supervision. He was dropped from the Wheel Vehicle Mechanic course.
4. On 9 March 1976, the applicant acknowledged notification of the action, elected not to make a statement or submit a rebuttal, and not to have a final type physical exam.
5. On 11 March 1976, the appropriate authority approved the recommendation and directed the applicant be given an Honorable Discharge Certificate.
6. On 18 March 1976, the applicant was discharged with an honorable discharge, in pay grade E-1, under the provisions of Army Regulation 635-200, paragraph 5-39. He had completed 4 months and 8 days of creditable active service and had no lost time.
7. The applicant's military medical records are not available.
8. Army Regulation 635-200 (Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel from the Army. At the time, paragraph 5-39 governed the Trainee Discharge Program. That program provided for the separation of service members who lacked the necessary motivation, discipline, ability, or aptitude to become productive Soldiers or failed to respond to formal counseling. The regulation essentially required that the service member have been voluntarily enlisted, be in basic, advanced individual, on-the-job or service school training prior to award of a military occupational specialty, and must not have completed more than 179 days of active duty on their current enlistment by the date of separation. The regulation provided that Soldiers could be separated
when they demonstrated they were not qualified for retention due to failure to adapt socially or emotionally to military life, could not meet minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline; of demonstrated character and behavior characteristics not compatible with satisfactory continued service.
9. Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. The regulation defines physically unfit as unfitness due to physical disability. The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.
DISCUSSION AND CONCLUSIONS:
The evidence of record shows that the applicant was separated under the Trainee Discharge Program for poor attitude and lack of self discipline. His service medical records are not available, and there is no other evidence to show he was treated while in the Army for damaged knees. There is no evidence of record available to show that his service was interrupted because he was medically unfit due to an injury and no evidence of record to show that an injury resulted in his poor attitude and lack of self discipline.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___xx___ ___xx___ _____xx_ 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.
_______ _xxxx______ ___
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) AR20080009971
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ABCMR Record of Proceedings (cont) AR20080009971
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