IN THE CASE OF:	  

		BOARD DATE:	  20 April 2010

		DOCKET NUMBER:  AR20090016179 


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 his 1976 discharge be corrected to show he was medically discharged due to spinal disease.

2.  The applicant states medical personnel were aware he had a spinal disease called spondyloepiphyseal dysplasia (SED).  He states he was born with the disease and doctors stated he should never have been accepted for military service.  He states when the Army discovered he suffered from the disease he was immediately discharged.

3.  He states he has been in extreme pain and humiliated because of his size for over 35 years.  His spine could have been taken care of at an early age.  He maintains if the medical staff at Fort Riley would have told him he was being discharged because of his back condition he could have seen an orthopedic surgeon to correct his condition and do whatever was necessary to increase his height.  Instead he has been in pain and ridiculed.   

4.  The applicant provides copies of a 2006 radiology report, a 2007 body bone scan, and results of blood tests conducted in 2006 and 2007.  

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.  Spondyloepiphyseal dysplasia is a descriptive term for a group of disorders with primary involvement of the vertebrae and epiphyseal centers resulting in a short-trunk disproportionate dwarfism.  Spondylo refers to spine, epiphyseal refers to the growing ends of bones, and dysplasia refers to abnormal growth.  No service medical records were available for review.

3.  The applicant enlisted in the Regular Army, on 11 November 1974.  He successfully completed training and was assigned to Fort Hood, Texas in May 1975.  In February 1976 he was convicted by a special court-martial of being absent without leave (AWOL) from 18 August to 14 October 1975.  His punishment included confinement for 2 months.  In March 1976 he was assigned to the Retraining Brigade at Fort Riley, Kansas.

4.  In April 1976 the applicant’s commander initiated action to discharge him under the provisions of Army Regulation 635-200, paragraph 5-37 (Expeditious Discharge Program).  The unit commander indicated he was initiating separation action because of the applicant’s failure to assimilate into the Army environment and his inability to develop into a satisfactory Soldier.  The commander recommended the issuance of a general discharge.

5.  The applicant acknowledged receipt of the proposed separation action and waived his attendant rights.

6.  The appropriate authority approved the separation action and on 30 April 1976 he was discharged.  He was issued a general discharge certificate and his service was characterized as under honorable conditions.  He completed 
10 months and 15 days of creditable service but he had more than 200 days of lost time due to being AWOL and in confinement.

7.  The applicant's record does not contain any evidence that shows he applied to the Army Discharge Review Board to have his discharge upgraded within that board's statute of limitations.


8.  The medical documents provided by the applicant are related to a December 2006 Radiology Report which shows multi-level changes of pronounced degenerative disc disease and bilateral neuroforaminal stenosis (constricted or narrow opening that nerves pass through) and a June 2007 body bone scan which shows increased activity throughout the thoracic and lumbar spine.  The 2006 and 2007 blood tests generally show results in the normal range with some abnormality in granulocytes, lymphocytes, and nonecytes.

9.  References:

	a.  Army Regulation 635-200 (Enlisted Separations) provides the policy and sets forth the procedure for administrative separation of enlisted personnel.  Paragraph 5-37, then in effect, provided for the EDP.  This program provided for the discharge of individuals 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.  Such personnel were issued a general or honorable discharge, as appropriate.

	b.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  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 applicant’s contention that he should have been medically discharged is not supported by the evidence of record.  There were no service medical records available for review and the medical documents provided by the applicant from 2006 and 2007 do not serve as evidence the applicant had any medical conditions while in the military which rendered him unfit.

2.  The applicant was administratively separated as a result of his ability to assimilate and develop into a satisfactory Soldier.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations, with no indication of procedural errors which would have jeopardized 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 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)                                         AR20090016179



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ABCMR Record of Proceedings (cont)                                         AR20090016179



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