IN THE CASE OF:	

		BOARD DATE:	  3 March 2009

		DOCKET NUMBER:  AR20080017408 


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 his feet, ankles, lower and upper legs, hips, and lower back were ruined because he was ordered to wear combat boots in contravention to his physical profile limitations.  The eventual treatment of those conditions caused permanent neurological and neuromuscular disease.  To cover up their failure to provide him with prompt and proper medical treatment for his conditions, they offered him an immediate honorable discharge.  

3.  The applicant does not provide any additional documents in support of his request.

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 military records show that he enlisted in the Regular Army on 9 January 1979.  While in basic combat training, the applicant was commended for graduating in the top 10 percent of his class.  The applicant completed his initial entry training and was awarded military occupational specialty (MOS) 31V (tactical communications systems operator/mechanic).

3.  Between 17 October 1979 and 6 December 1979, the applicant received five counseling statements.  Those counselings were for not preparing for or being present for a re-inspection; being disrespectful to his first sergeant (two counselings); the handling of money; failure to abide by medical advice given to him (e.g., to wear appliances and take prescribed medicine) by qualified Army medical doctors; and failure to honor his word to his commander to comply with medical advice.

4.  On 5 March 1980, the applicant's commander notified him of his intent to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 5 (Expeditious Discharge Program (EDP)).  The reasons stated for that recommendation were the applicant's inability to adapt emotionally, inability to accept instructions and directions, and lack of cooperation with his peers and superiors, as documented in five counseling sessions.

5.  The applicant was given the opportunity to consent or decline the proposed discharge and to make a statement in his own behalf.  The applicant consented to the proposed discharge and did not desire to make any statements or submit a rebuttal in his own behalf.

6.  The applicant's commander then forwarded a recommendation to discharge the applicant under the EDP.  That recommendation was approved by the appropriate authority.  Accordingly, on 20 March 1980 the applicant was issued an Honorable Discharge Certificate under the provisions of Army Regulation
635-200, chapter 5, paragraph 5-31h(2).

7.  Army Regulation 635-200 provides the policy and sets forth the procedure for administrative separation of enlisted personnel.  Chapter 5, as then in effect, provided, in pertinent part, for the EDP.  This program provided that an individual who had completed at least 6 months, but less than 36 months of active duty and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential) that they could not or would not meet acceptable standards could be separated.  Such personnel were issued a general or honorable discharge, as appropriate, except that a recommendation for a general discharge had to be initiated by the immediate commander and the individual had to consult with legal counsel.  

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEBD).  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was counseled in writing on five occasions for failing to follow instructions and disrespect.  This record is certainly sufficient to initiate discharge processing under the EDP.  

2.  The applicant was given the option to accept or decline the discharge and he accepted it.  In addition, he did not submit any matters of mitigation or a rebuttal when he accepted the discharge.  If the applicant believed that he should have been processed under the disability evaluation system, that would have been his opportunity to express that opinion.

3.  The only evidence of the applicant having any medical problems was his commander's written counseling in which his commander stated that the applicant failed to abide by medical advice given to him and failed to honor his word to his commander to comply with medical advice.

4.  Since there is no evidence that the applicant was determined not to meet medical retention standards, he could not have been referred to an MEBD.  Without an MEBD, he could not be referred to a PEB.  Without a PEB he could not have been separated for physical unfitness (medical).






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)                                         AR20080017408



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ABCMR Record of Proceedings (cont)                                         AR20080017408



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