IN THE CASE OF:	  

		BOARD DATE:	        22 January 2009

		DOCKET NUMBER:  AR20080017270 


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 records to show that he was medically discharged instead of honorably discharged.

2.  The applicant states that he enlisted for a period of 3 years on 5 October 1976 and was discharged on 24 February 1977 due to a dislocated knee cap.  He was unable to finish training or ship out.  

3.  The applicant provides the following additional documentary evidence in support of his request:

	a.  DA Form 2139-1 (Military Pay Voucher), dated 24 February 1977.

	b.  Memorandum, Subject:  Request for Separation, dated 24 February 1977, issued by Headquarters, U.S. Army Infantry Center, Fort Benning, Georgia.

	c.  Honorable Discharge Certificate, dated 24 February 1977.

	d.  DD Form 214 (Report of Separation from Active Duty), dated 24 February 1977.

	e.  TRADOC Form 578-R (Individual Training Record), annotated with miscellaneous training events completed in 1976.

   
   f.  Standard Form (SF) 600 (Chronological Record of Medical Care), dated on miscellaneous dates.
	
   g.  SF 513 (Clinical Record - Consultation Sheet), dated 14 November 1976.

	h.  DD Form 689 (Individual Sick Call Slip), dated 24 November 1976.

	i.  DA Form 2496 (Disposition Form), Subject:  Request for Waiver – BCT/BT [Basic Combat Training/Basic Training], dated 9 December 1976. 

	j.  ATZJ-DPT FL 1 [Fort Jackson Form Letter 1], Subject:  Request for Waiver, dated 10 December 1976.

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 records show he enlisted in the Regular Army for a period of 3 years on 5 October 1976.  He completed basic combat training at Fort Jackson, South Carolina, and proceeded on 17 December 1976 to Fort Benning, Georgia, to attend advanced individual training (AIT) for military occupational specialty (MOS) 11B (Infantryman).

3.  The applicant’s SF 513, dated 24 November 1976 and SF 600, dated 28 November 1976, show that he told his attending physician that he fell down a hill during a road march and that his right knee was swollen, but his unit did not allow him to go on sick call.  The attending physician remarked that the applicant appeared to have tenderness in his knee.

4.  The applicant submitted a copy of a DA Form 2496, dated 9 December 1976, in which the immediate commander requested and was granted a waiver of the applicant’s physical test portion of his basic combat training due to a temporary physical profile that was awarded on 24 November 1976 for a period of 21 days for a dislocated knee cap and that the applicant was cleared to ship. 

5.  The applicant’s records reveal a history of performance and career counseling by his AIT drill sergeant and his immediate commander during attendance at MOS training as follows:

	a.  on 15 January 1977, for violating a lawful order by coming up the fire escape and getting in his locker because he forgot his weapon card;

	b.  on 21 January 1977, he stated that he wanted to get out of the Army and added that his temper was bad and that he did not like working hard for the 
money.  He also added that the only reason he joined the Army was because his friends talked him into it and that he felt that he made a mistake and wanted to correct it by getting out of the Army; 

	c.  on 29 January 1977, for being late to physical training (PT) formation, disobeying orders, reporting to sick call unshaven, and wearing unpolished boots.  He also reported to his drill sergeant's office and stated that another Soldier had hit him and that he was not afraid to shoot that Soldier on the range and then shoot himself;

	d.  on 29 January 1977, for entering the unit orderly room with his field jacket unfastened, disobeying an order to return after fastening his field jacket, and displaying disrespect and lack of self-discipline; 

	e.  on 30 January 1977, the immediate commander noted that the applicant did not appear to be emotionally stable at times and that he had a quick temper which he displayed with childish acts.  He also became mad at a drill sergeant and wanted to quit the Army.  He further got into a fight with another Soldier and threatened to shoot him and himself at the range and refused to go to PT without being given a lawful order; and

   f.  on 7 February 1977, for failing to adapt to military service as evidenced by his insubordination and temper flares, and being unshaven in the morning.  He also stated that he did not like the way he was being treated, the food, or the people in the barracks.

6.  On 9 February 1977, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful order from a superior noncommissioned officer (NCO) on or about 29 January 1977.  His punishment consisted of a forfeiture of $87.00 pay, 14 days of restriction, and 14 days of extra duty.
7.  On 10 February 1977, the applicant’s unit commander notified the applicant that he was initiating action to discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-39 (Trainee Discharge Program (TDP) due to his inability to adapt to military service, lack of motivation, and poor attitude.

8.  On 11 February 1977, the applicant acknowledged receipt of the unit commander’s notification.  He further declined legal counsel, waived his right to a physical examination, and elected not to submit a statement in his own behalf.

9.  On 11 February 1977, the unit commander initiated separation action against the applicant under the provisions of Army Regulation 635-200, paragraph 5-39.  The unit commander remarked that the applicant did not appear to be emotionally stable at times and that he had a quick temper which was displayed with childish acts.  The unit commander also remarked that the applicant had been insubordinate and failed to follow instructions and in one instance became mad at a drill sergeant and wanted to quit the Army.

10.  On 15 February 1977, the applicant’s intermediate commander recommended approval of the discharge and stated that he personally interviewed the applicant and noticed that he was unable to demonstrate the self-control necessary to adjust to military requirements.  His continued display of this behavior indicated his inability to maintain the desired standards of behavior.

11.  On 17 February 1977, the separation authority approved the applicant's discharge and directed that he receive an Honorable Discharge Certificate.  On 24 February 1977, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed a total of 4 months and 20 days of creditable active service and 2 days of lost time.  Item 9c (Authority and Reason) of his DD Form 214 shows the entry, "Para[graph] 5-39, AR [Army Regulation] 635-200.” 

12.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, or rating and the conditions must have been incurred while entitled to base pay.

13.  Army Regulation 635-40 (Physical Evaluation, for Retention, Retirement, or Separation), paragraph 2-2b, then in effect, provided that when a member was being separated by reason other than physical disability, his continued 

performance of duty created a presumption of fitness which could be overcome only by clear and convincing evidence that he was unable to perform his duties 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.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Paragraph 5-39 contained the policy for separation under the provisions of the Trainee Discharge Program.  It stated, in pertinent part, that commanders may expeditiously discharge Soldiers who lack the necessary motivation, discipline, ability, or aptitude to become a productive Soldier.  These Soldiers must have voluntarily enlisted in the Regular Army, Army National Guard, or United States Army Reserve, and still be in either basic combat training or advanced individual training, and could not have completed no more than 179 days active duty or initial active duty for training on their current enlistment by the date of discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his honorable discharge should be corrected to show a medical discharge.

2.  The evidence of record shows that the applicant appears to have injured his knee during a routine road march while in basic combat training at Fort Jackson, South Carolina.  He was treated by medical personnel at the local Army hospital and was issued a 21-day temporary physical profile to allow his knee to completely heal.  His knee injury occurred around the time he was scheduled to take his basic physical fitness test.  A waiver of the requirements to take the physical fitness test was requested and was ultimately approved, which allowed the applicant to graduate from basic combat training and ship to AIT.

3.  The evidence of record further shows that while attending AIT, the applicant displayed an inability to adapt to military service, lack of motivation, and a poor attitude, as evidenced by his multiple counseling and one instance of nonjudicial punishment.  Accordingly, his immediate commander initiated separation action against him.  The applicant was accordingly separated from the Army under the provisions of the Trainee Discharge Program.  

4.  The evidence of record also confirms that the applicant’s separation processing was accomplished in accordance with the applicable regulation in effect at the time.  It further shows that the applicant was properly notified of the rights he had in connection with the separation action, and that he voluntarily 
elected not to submit a rebuttal statement in his own behalf.  Lacking independent evidence to the contrary, it appears that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  

5.  In view of the facts of this case, it is noted that the narrative reason for the applicant’s separation was appropriately assigned based on the authority for his discharge.  It is also noted that the applicant’s discharge was proper and equitable and that the applicant has failed to provide evidence that would challenge its validity.  Therefore, there is no basis for changing the reason for the applicant’s discharge in this case.

6.  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 this requirement.  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.


															XXX
      ______________________
               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)                                         AR20080017270



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ABCMR Record of Proceedings (cont)                                         AR20080017270



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