IN THE CASE OF:	  

		BOARD DATE:	       13 January 2009

		DOCKET NUMBER:  AR20080016878 


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 general discharge (GD) under honorable conditions be upgraded to a fully honorable discharge (HD).

2.  The applicant states he was taken into the military with a bad knee and the Army knew it but took him anyway.  He states he subsequently injured the knee during basic training and was administratively discharged.  He contends his discharge should be honorable and that he is unable to find a job because they still put a lot of weight on his discharge.

3.  The applicant provides no evidence 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.  On 28 September 1968 the applicant underwent an entrance physical examination which noted a scar on his left knee.  An orthopedic consultation noted the applicant had injured his knee approximately 3 years earlier while playing football.  He underwent a knee operation in November 1964.  The orthopedic examination indicated the applicant's gait was normal, with a full range of motion and no instability.  X-rays showed no evidence of degenerative changes and there was no evidence of significant impairment at the time of the examination.  The examining physician concluded the applicant was not considered disqualified for unlimited military service.

3.  The applicant enlisted in the Regular Army for a period of 4 years on 
1 December 1967.  He was assigned to Fort Benning, Georgia to undergo basic combat training.

4.  The applicant's record indicates he was absent without leave for 2 days in March 1968 and punished under Article 15 of the Uniform Code of Military Justice.  His punishment included forfeiture of $20.00 pay for one month.  Item 38 (Record of Assignments) on his DA Form 20 (Enlisted Qualification Record) notes he received an "excellent" conduct rating and a "good" efficiency rating while assigned to the 2nd Brigade at the Army Training Center at Fort Benning, but subsequently received "fair" ratings in both conduct and efficiency after being assigned to the Special Training Company on 6 March 1968.

5.  On 3 April 1968 the "Registrar" at Martin Army Hospital, Fort Benning, forwarded Medical Board Proceedings pertaining to the applicant, under the provisions of paragraph 5-9, Army Regulation 635-200, through the commanding officer of the U.S. Army Training Center at Fort Benning to the commanding general, Fort Benning.  The Medical Board Proceedings were not part of the records available to the Board.  An undated, but signed, first endorsement to the Registrar's memorandum indicates the applicant was approved for discharge on 
23 April 1968 with an award of a GD.  Authority for the discharge was listed as paragraph 5-9c, Army Regulation 635-200.  

6.  There were no additional medical records available to the Board beyond the applicant's enlistment physical.  However, the record does contain a 23 April 1968 statement signed by the applicant indicating there had been no change in his medical condition since his last medical examination on 22 March 1968.

7.  The DD (Department of Defense) Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to the applicant on 23 April 1968, shows he was discharged, in the rank of private/E-1, under the provisions of chapter 5, Army Regulation 635-200, by reason of not meeting the medical 
standards at time of enlistment.  It also shows his service was characterized as "Under Honorable Conditions" and that he received a General Discharge Certificate.  The applicant authenticated this document with his signature in Item 34 (Signature of Person Being Transferred or Discharge).  

8.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Paragraph 5-9 specifically provided for the discharge of personnel who did not meet medical fitness standards.  It stated that personnel who did not meet the medical fitness standards for enlistment or induction would be discharged.  Commanders were authorized to order discharge of individuals who were not medically qualified under procurement medical fitness standards when accepted for induction or initial enlistment.  A medical board proceeding was required to establish that a medical condition permanently disqualified the individual for entry in the military service had it been detected at that time and did not disqualify the individual from retention in the military service under the provisions of Army Regulation 40-501 (Standards of Medical Fitness).  

9.  That same regulation permitted an individual's commanding officer or higher authority to characterize the Soldier's service as general when the Soldier was subject to separation and it was determined under the prescribed standards that separation was warranted.  

10.  An HD is a separation with honor.  Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the Soldier's current enlistment.  A GD is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an HD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that given his discharge was for medical reasons based on his knee condition and as a result he should have received an HD was carefully considered.  However, by regulation, the separation authority has the option of issuing either a GD or an HD to members separated under the provisions of Army Regulation 635-200, paragraph 5-9 for failing to meet procurement medical standards based on their overall record of service.  

2.  Although the specific basis for the separation authority's decision is not completely documented, the applicant's record does show he was AWOL for
2 days, he was punished under Article 15 of the UCMJ, and he received a fair conduct and efficiency rating while being processed for separation.  The record 
contains a properly constituted DD Form 214 that shows his service was characterized as "Under Honorable Conditions" and that he received a GD Certificate.  The applicant authenticated the DD Form 214 with his signature on the date of his separation.  In effect, his signature was his verification that the information on the separation document, to include the service characterization and discharge certificate issued entries, was correct at the time the document was prepared and issued.  As a result, there is an insufficient evidentiary basis to grant the requested relief.  

3.  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.

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)                                         AR20080016878



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ABCMR Record of Proceedings (cont)                                         AR20080016878



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