IN THE CASE OF:	  

		BOARD DATE:	        9 September 2008

		DOCKET NUMBER:  AR20080010657 


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 that his honorable discharge be changed to a medical discharge.

2.  The applicant states that he was told he was going to be discharged medically, but he was discharged honorably.

3.  The applicant provides no additional evidence in support of his application.

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 111221.  He enlisted on 6 February 1976 for a period of 
3 years.  
3.  On 27 February 1976 the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, paragraph 5-39, the Trainee Discharge Program.  The unit commander cited that the applicant was not physically able to keep up with his peers or to meet the minimum standards of basic combat training, that his physical weakness was compounded by his bad attitude, and that his lack of motivation had caused him to progress very slowly compared to his peers.    

4.  Item 13 (Initial Observation) on a TRADOC Form 871-R (TDP [Trainee Discharge Program] Counseling), dated 1 March 1976, shows that on 
18 February 1976 it was observed that the applicant was physically weak and lacked the desire to complete basic combat training; on 19 February 1976 it was observed that the applicant was physically weak and showed no desire to improve himself to meet the standards of his peers; and on 22 February 1976 it was observed that the applicant could not perform marching movements and could not pass the physical test primarily because he “just does not care to do it. He has been on sick call 4 times in the first week of training.”   

5.  The TRADOC Form 871-R also shows the applicant was counseled on 
18 February 1976 (advised it would take a lot of effort for him to condition himself), on 19 February 1976 (advised to change his attitude toward training and to quit requesting a discharge), and on 22 February 1976 (after a rehabilitative transfer, he was again told to concentrate on his training and quit feeling sorry for himself).  The company commander indicated that all the applicant wanted was a discharge from the Army and that he simply could not adjust.  The company commander noted the applicant’s overall poor performance and inability to march and recommended that the applicant be discharged as soon as possible.   

6.  On 1 March 1976, 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 Administration and other benefits normally associated with completion of honorable active duty service would be affected.  He elected to make a statement on his behalf.  In summary, he stated that he wanted to be discharged from the Army and that he could not adjust.

7.  On 4 March 1976, the separation authority approved the recommendation for separation and directed that the applicant be furnished an honorable discharge.  

8.  A DA Form 3082 (Statement of Medical Condition), dated 8 March 1976, shows the applicant indicated that since the last separation examination his medical condition had changed as follows:  headaches, black outs, back pain, and hearing loss in his right ear.
9.  Accordingly, the applicant was honorably discharged on 9 March 1976 under the provisions of Army Regulation 635-200, paragraph 5-39, the Trainee Discharge Program.  He had completed 1 month and 4 days of creditable active service.  

10.  There is no evidence of record which shows the applicant was diagnosed with any unfitting medical condition prior to his discharge on 9 March 1976.

11.  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.  

12.  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.  

13.  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.

14.  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 told he was going to be medically discharged from the Army, 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 hearing and 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 9 March 1976.  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.  
  
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

__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)                                         AR20080010657





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ABCMR Record of Proceedings (cont)                                         AR20080010657



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