IN THE CASE OF:	

		BOARD DATE:	21 July 2009    

		DOCKET NUMBER:  AR20090004708 


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 he was medically discharged instead of honorably discharged.

2.  The applicant states that he was not given the proper release papers and should have been medically discharged because had seizures at the time.

3.  The applicant provides an internet printout of a detailed background report that shows his previous addresses, 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 record shows he enlisted in the U.S. Army Reserve for a period of 6 years on 22 October 1974.  He was subsequently ordered to active duty for training (ADT) on 6 December 1974 and was assigned to Company B, 4th Battalion, 3rd Basic Combat Training Brigade, Fort Leonard Wood, MO, for completion of training.  

3.  On 20 January 1975, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Department of the Army (DA) Message DTG 011510Z August 1973, Evaluation and Discharge of Enlistees Before 180 Active Duty days (also known as the Trainee Discharge Program).  The immediate commander remarked on the applicant’s negative attitude and the fact that every time he was told to do his job, he had a wise remark to say to his drill sergeant which affected the morale of the platoon.  The immediate commander added that the applicant’s lack of self-discipline and negative attitude prevented him from becoming a productive Soldier and made him unsuitable for further military service.

4.  On 21 January 1975, the applicant acknowledged receipt of the notification of his proposed discharge and understood that due to non-completion of requisite active duty time, Veteran Administration and other benefits normally associated with completion of honorable active duty service would be affected.  He further elected not to have counsel represent him, declined a separation medical examination, and elected not to submit a statement on his own behalf.

5.  On 21 and 22 January 1975, the applicant’s immediate and intermediate commanders recommended approval of the discharge.  The intermediate commander further remarked that the applicant was unable to adjust to the military regimentation, expressed desire to get out of the Army, and did not respond to counseling.

6.  On 24 January 1975, the separation authority approved the request for separation and directed the applicant be furnished an Honorable Discharge Certificate.  The applicant was accordingly discharged on 31 January 1975.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of the DA Message 011510Z AUG 73 with an honorable character of service.  This form further shows he completed a total of 1 month and 25 days of active military service.  

7.  There is no indication in the applicant’s available medical records that he suffered from seizures and/or any medical conditions.


8.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel from the Army.  DA Message DTG 011510Z August 1973, later incorporated into the regulation under paragraph 5-33 governed the Trainee Discharge Program (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 requires that the service member must have voluntarily enlisted; must be 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 duty on their current enlistment by the date of separation.  The regulation provided that soldiers may be separated when they have demonstrated that they are not qualified for retention due to failure to adapt socially or emotionally to military life; cannot 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.  The characterization of service for soldiers separated under this provision of regulation will be honorable.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), establishes the Army physical disability evaluation system 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 office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the medical evaluation board (MEB) determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB).

10.  Paragraph 3-1 of this regulation provides 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform his/her duties and assign an appropriate disability rating before that service member can be medically separated or retired.


11.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Department of Veterans Affairs Schedule for Rating Disabilities.  Department of Defense Instruction 1332.39 and Army Regulation 635-40, Appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should have been medically discharged.  

2.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.  

3.  The evidence of record shows that the applicant lacked the necessary motivation, discipline, ability or aptitude to become productive soldiers or have failed to respond to formal counseling.  Accordingly, his chain of command initiated separation action against him.

4.  There is no evidence in the applicant’s records that he suffered from seizures and/or any other medical condition that warranted his entry into the Physical Disability Evaluation System.   Therefore, he was not considered by an MEB.  Without an MEB, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or separated/retired for physical disability.

5.  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 did not submit evidence that would satisfy this requirement.  The applicant has not shown error, injustice, or inequity for the relief he requests.



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)                                         AR20090004708





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ABCMR Record of Proceedings (cont)                                         AR20090004708



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