IN THE CASE OF:	  

		BOARD DATE:	  9 July 2009

		DOCKET NUMBER:  AR20090006090 


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 1974 discharge be corrected to show that he was discharged by reason of disability.

2.  The applicant states he injured his right knee when he fell while undergoing basic training.  He states he was told that as a result of his knee injury he could not keep up and, as such, was subsequently discharged.  He states the correction of his records should be allowed in order for him to pursue Department of Veterans Affairs (VA) benefits.

3.  The applicant provides a copy of his 1974 DD Form 214 (Report of Separation from Active Duty).

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.  Records available to the Board indicate the applicant enlisted and entered active duty as a Regular Army Soldier on 15 October 1974.

3.  On 27 November 1974, while in basic training, the applicant was notified of his pending discharge under the provisions of Department of the Army (DA) message, dated 011510Z August 1973, subject:  Evaluation and Discharge of Enlistees Before 180 Active Duty Days.  The unit commander based his recommendation for discharge on the applicant’s poor attitude or sense of responsibility, his demonstrated lack of military discipline evidenced by his sleeping on guard, and his failure to improve his attitude or performance despite counseling efforts.

4.  On 27 November 1974, the applicant acknowledged notification of his pending discharge.  He waived his right to counsel and elected not to have a separation medical examination or to submit statements in his own behalf.  The applicant also acknowledged that due to non-completion of requisite active duty time, VA and other benefits normally associated with completion of honorable active duty service would be affected.

5.  The intermediate commander recommended that the applicant be discharged as recommended.

6.  The separation authority approved the recommendation for discharge on 2 December 1974 and directed that the applicant be issued an honorable discharge.

7.  Accordingly, the applicant was discharged with an honorable discharge on 5 December 1974 under the provisions of DA message, dated 011510Z August 1973, subject:  Evaluation and Discharge of Enlistees Before 180 Active Duty Days.  He had served 1 month and 21 days of total active service.

8.  There is no evidence in the available records which shows the applicant was treated for or diagnosed with a knee problem prior to his discharge.

9.  DA message, dated 011510Z August 1973, provided the standards and criteria for the program for evaluation and discharge of enlistees before 180 active duty days.  This program was implemented effective 1 September 1973 pending the revision of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  This program was designed to enable commanders to expeditiously discharge the individual who lacks the necessary motivation, discipline, ability or aptitude to become a productive Soldier when this individual:  (1) was voluntarily enlisted in the Regular Army, the Army National Guard or the Army Reserve; (2) is in basic combat training or basic training, or in military occupational specialty (MOS) training or advanced individual training, a service school, in units or on job training prior to the award of an MOS, or will have completed no more than 179 days of active duty by the date of discharge, whichever occurs earlier; or (3) has demonstrated that he or she is not qualified for retention for one or more of the following reasons:  (a) cannot or will not adapt socially or emotionally to military life; (b) cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, or motivation; or (c) does not meet the moral, mental, or physical standards for enlistment including disqualifying drug use in accordance with Army Regulation 601-210 (Active and Reserve Components Enlistment Program).  The program does not apply to personnel who should be eliminated under the provisions of Army Regulation 635-200, paragraph 13-5a, for unfitness, or chapter 14 for fraudulent enlistment, or has demonstrated character and behavior characteristics not compatible with satisfactory continued service.  Individuals discharged under the authority of this message were given an honorable discharge.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

DISCUSSION AND CONCLUSIONS:

1.  The Board considered the applicant’s contention that he was discharged because of an injury to his knee.  However, there is no evidence of record and the applicant has provided no evidence to support this contention.

2.  The evidence of record shows the applicant elected not to have a separation medical examination prior to his discharge.

3.  The applicant’s administrative separation was accomplished in compliance with DA message, dated 011510Z August 1973, with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

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 has failed to submit evidence that would satisfy this requirement.

6.  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.



      ___________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)                                         AR20090006090



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ABCMR Record of Proceedings (cont)                                         AR20090006090



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