IN THE CASE OF:	

		BOARD DATE:	  	  30 December 2008

		DOCKET NUMBER:  AR20080016693 


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 33 years ago he was discharged from the military after he had a seizure following a fall on a frozen sidewalk on post.  He contends that since his discharge he has been denied medical care at the Department of Veterans Affairs hospital because his records do not indicate his disability was service related.  He states that it was not a pre-existing condition prior to his enlistment and that it has been difficult to maintain steady employment and get insurance.

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 enlisted in the Regular Army on 10 September 1974 for a period of 3 years.  He successfully completed basic combat training.

3.  While in advanced individual training, the applicant had two grand mal seizures.  On 10 January 1975, he was issued a permanent profile of 311111 for a seizure disorder.  He was found to be medically qualified for duty with limitations (no assignment to a unit where a sudden loss of consciousness would be dangerous to him or others, such as work on scaffolding, handling ammunition, vehicle driving, or work near moving machinery).

4.  Part II (Observations) of FJ Form 46 (Evaluation for Discharge for Enlistees under Provisions of Expeditious Discharge Program) states that on 3 February 1975 the applicant failed to fall out for formation and claimed that his profile exempted him from prolonged standing.  His personal hygiene was found to be unsatisfactory.  Part III (Counseling) of FJ Form 46 states the applicant was counseled on 10 February 1975 for his behavior in formations, his refusal to do physical training, his slow progress in the Administration School, and his duty performance.  The form states the applicant responded to the counseling in a negative manner.

5.  On 28 February 1975, while in advanced individual training, the applicant was hospitalized and diagnosed with seizure disorder, controlled.  He was discharged from the hospital on 8 March 1975.  On 10 March 1975, he was issued a permanent profile of 311111 for a seizure disorder.  He was found to be medically qualified for duty with permanent assignment limitations (no assignment to a unit where a sudden loss of consciousness would be dangerous to him or others, such as work on scaffolding, handling ammunition, vehicle driving, work near moving machinery; no night duty; and no crawling, stooping, running, jumping, prolonged standing or marching).

6.  Part III of FJ Form 46 states that on 19 March 1975 the applicant was counseled on his belligerent attitude toward authority and his indifference to duty.  His reaction was negative and there was no indication to improve his attitude or performance.  The form states the applicant exhibited a disrespectful attitude toward instructions and corrections from his superiors.  The applicant's unit commander states that since 31 January 1975 the applicant consistently failed to meet the standards of duty performance required of him, that he did not readily assume the tasks given to him, that he requires continual supervision to accomplish routine jobs, and that he was dropped from Administration School on 2 April 1975 for lack of motivation and a poor attitude.  He points out that the applicant was transferred to his unit after he was dropped from the Field Wireman School for academic reasons.  He also states that the applicant has consistently expressed an attitude of hostility and even insolence toward his superiors and the military in general.  He recommended that the applicant be discharged.

7.  On 26 March 1975, the applicant underwent a separation physical examination and was found to be qualified for discharge.

8.  On 21 April 1975, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 5, paragraph 5-37, under the Expeditious Discharge Program.  The unit commander based his recommendation for separation on the applicant’s substandard duty performance and hostile attitude toward the military environment.

9.  On 21 April 1975, the applicant acknowledged notification of his proposed discharge, voluntarily consented to discharge from the Army, and elected not to make a statement on his behalf.

10.  On 23 April 1975, the separation authority approved the recommendation for separation and directed that the applicant be furnished an honorable discharge.

11.  Accordingly, the applicant was honorably discharged on 28 April 1975 under the provisions of Army Regulation 635-200, paragraph 5-37, under the Expeditious Discharge Program for failure to maintain acceptable standards for retention.  He had served 7 months and 19 days of creditable active service.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The pertinent paragraph in chapter 5 provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential may be discharged.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge.  Issuance of an honorable discharge certificate was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade, and general aptitude.  A general discharge is a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.

13.  Title 10, U.S. 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 (Physical Evaluation for Retention, Retirement, or Separation) 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.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, or rank.  It states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a Soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement indicates that a Soldier is fit.

15.  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.



DISCUSSION AND CONCLUSIONS:

1.  Although the applicant now contends that his discharge should be changed to a medical discharge due to a seizure disorder he incurred in January 1975, he was found to be medically qualified for duty with permanent assignment limitations.  Numerical designator "3" indicates 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.

2.  There is no evidence of record to show the applicant was ever medically unfit to perform his duties.  In addition, he was found qualified for separation on 25 March 1975.  Therefore, 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)                                         AR20080016693



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ABCMR Record of Proceedings (cont)                                         AR20080016693



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