IN THE CASE OF:	  

		BOARD DATE:	  12 May 2009

		DOCKET NUMBER:  AR20090000686 


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, in effect, that his 1976 discharge be changed to a medical discharge.   

2.  The applicant states, in effect, that at the time of his discharge, the Army wanted to prevent a scandal or reprimanding their drill instructor, so he was not provided proper counsel or a physical evaluation.  He states that at the least, he deserves a proper medical review.   

3.  The applicant provides the following documents in support of his application: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States); Medical Treatment Records, dated between 5 August and 
20 October 1976; two Standard Forms (SFs) 88 (Reports of Medical Examinations), dated 21 July  and 27 October 1976; two SFs 93 (Reports of Medical History), dated 21 July and 26 October 1976; his DA Form 2-1 (Personnel Qualification Record); his DD Form 214 (Report of Separation from Active Duty); and two Department of Veterans Affairs (VA) Letters and Rating Decision, dated between 30 September 1980 and 12 August 2008.  

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 record shows that he enlisted in the Regular Army and entered active duty on 2 August 1976.  A SF 88 documenting the applicant's enlistment medical examination, dated 21 July 1976, shows he suffered from a  shows he had a hydroceles (a fluid-filled sac surrounding a testicle) condition that did not disqualify him from enlistment.  It further shows he was cleared for enlistment by the examining physician.  

3.  The applicant was assigned to Fort Leonard Wood, Missouri, to attend basic combat training (BCT).  His record shows he entered the Army in the rank of private/E-1 (PV1) and that this is the highest rank he attained while serving on active duty.  It also shows that he failed to complete training and was never awarded a military occupational specialty (MOS) or performed military duties outside of the BCT environment.  

4.  His medical treatment record shows the applicant sought treatment for various conditions between August and October 1976.  Primary among these conditions was bilateral varicoceles and bilateral hydroceles.  An SF 502 ( Narrative Summary) on file, dated 13 October 1976, shows the applicant was hospitalized at the Fort Leonard Wood Army Hospital on 10 September 1976 and underwent a bilateral varicocele repair, a left hydrocele repair, and his right testicle was pexed into the scrotum.  

5.  An SF 88, dated 27 October 1976, which was conducted during the applicant's discharge processing, notes no disqualifying medical conditions.  It further shows that subsequent to this medical examination, he was determined to be medical qualified for separation/retention and was cleared for separation by the examining physician.  No disqualifying medical conditions that would have disqualified him from further service or supported his separation processing through medical channels were noted on the SF 88.  

6.  On 10 November 1976, the BCT commander notified the applicant that action was being initiated to discharge him under the provisions of the Trainee Discharge Program (TDP).  The commander stated that the specific reasons for his initiating the action were the applicant's lack of motivation and desire to train, as evidenced by his continuing to ride sick call; and his lack of self-discipline, as evidenced by his substandard living area and personal appearance.  The commander also stated that the applicant possessed a negative attitude, as evidenced by his poor performance in all aspects of BCT.  

7.  On 10 November 1976, the applicant acknowledged the separation action notification and he elected not to submit statements in his own behalf or to have counsel represent him during the discharge process.  He did elect to have a separation medical examination if the discharge were approved.   

8.  On 12 November 1976, the separation authority approved the applicant's discharge under the provisions of paragraph 5-39, Army Regulation 635-200, the TDP, and directed he receive an honorable discharge.  On 17 November 1976, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed a total of 3 months and 16 days of active military service.  

9.  The applicant provides a VA Letter, dated 29 October 1980, and an accompanying VA Rating Decision, dated 30 September 1980, which were completed in response to his request for service connection for residuals of bilateral hydroelectomy and residuals of bilateral varicocelectomy.  These documents outline the military medical treatment the applicant received for the conditions in question and indicated these conditions existed prior to the applicant entering military service and there was no evidence of permanent aggravation during his short period of active duty service.  As a result, the applicant's claim for service connection was denied on 29 October 1980.

10.  The applicant also provides VA letters, dated 20 October 1998, 2 April 1999, and 12 August 2008.  The 1998 letter indicates the applicant's claim for service connection for residuals of bilateral hydrocelectomy and residuals of bilateral varicocelectomy was denied on 29 October 1989, and he had 1 year from the date of denial to appeal the decision and that a new claim could not be opened unless he provided new and material evidence, which he did not.  As a result, his 1998 claim was also denied.  The 1999 letter indicates the VA provided the applicant information he requested and the 2008 letter indicates the VA was still processing his application for compensation.  There is no indication in these VA documents that the applicant ever was granted service connection for any medical conditions he incurred or permanently aggravated while serving on active duty.  

11.  Army Regulation 635-200 sets forth the policy for the separation of enlisted personnel of the Army.  Paragraph 5-39, in effect at the time of the applicant's discharge, governed the TDP.  This program provided for the separation of service members who lacked the necessary motivation, discipline, ability or aptitude to become productive Soldiers or have failed to respond to formal counseling.  The regulation essentially required that the service member must have voluntarily enlisted; must have been in basic, advanced individual training, on the job, or service school training prior to award of a military occupational specialty and must not have completed more than 179 days of active on their current enlistment by the date of separation.  The regulation provided that Soldiers could be separated when they had demonstrated that they were not qualified for retention due to failure to adapt socially or emotionally to military life; could not meet minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline; or have demonstrated character and behavior characteristics not compatible with satisfactory continued service. 

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  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, rank, or rating.  Separation by reason of disability requires processing through the PDES.  

13.  Chapter 3 contains guidance on standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of 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 their office, grade, rank, or rating.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.  

14.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  

15.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards assigned by proper military medical authorities at the time of separation.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have received a medical discharge or at the least been reviewed through the PDES at the time of his discharge was carefully considered.  However, there is insufficient evidence to support his claims.  

2.  By regulation, the mere presence of impairment does not, in and 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 their office, grade, rank, or rating. 

3.  The evidence of record shows the applicant's separation processing under the TDP was accomplished in accordance with the applicant regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  It further confirms that the applicant was only discharged under the TDP after he had received treatment for his preexisting medical conditions and had undergone a  comprehensive separation medical examination, which resulted in his being cleared for separation by competent medical authority.  

4.  The medical evidence of record and the independent medical evidence provided by the applicant fail to show he suffered from a disqualifying medical condition that disqualified him from further service and/or supported his separation processing through medical channels.  The VA records and letters confirm that he was treated for pre-existing medical conditions during his short period of active duty service, and that there was no evidence that this conditions disqualified him from further service, or that they were aggravated by military service.  As a result, there is no evidence suggesting the conditions he was treated for or any other medical conditions that existed disqualified him for retention or separation or supported his processing through the PDES at the time of his discharge.  

5.  Absent any evidence of record or independent evidence provided by the applicant that confirms he suffered from a disqualifying medical condition that warranting his separation processing through the PDES, there is an insufficient evidentiary basis to support granting a medical discharge or PDES review at this late date.  

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. 
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)                                         AR20090000686



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ABCMR Record of Proceedings (cont)                                         AR20090000686


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