IN THE CASE OF:	

		BOARD DATE:	  16 March 2010

		DOCKET NUMBER:  AR20090016877 


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.

2.  The applicant states, in effect, that he was injured while serving in the Army; however, Army officials did not want to recognize his injury, so they rushed his administrative discharge.

	a.  He states he lost the use of his left arm.  He adds he has no feeling at all in the arm for a period of anywhere from one to three months, at least two or three times a year.  He also states that he suffers from a bad heart, bad legs, and post-traumatic stress disorder.

   b.  He states he has attempted to get a service connection determination for his medical condition, but has been told his medical records are silent on the medical issues.

3.  The applicant provides no additional documentary evidence in support of his application.

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 enlisted and entered active duty in the Regular Army for a period of 3 years on 26 November 1973.  Upon completion of training he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  An AE Form 1107 (Bar to Enlistment/Reenlistment), dated 20 November 1974, shows the applicant's commander recommended the applicant be barred from reenlistment.  The basis of the action was that the applicant was immature, shirked duty, and had not responded to counseling.  The commander added that due to nervous and character disorders noted in the applicant, he was referred to the 130th General Hospital for psychiatric evaluation, and was recommended for immediate administrative separation because of the disorders.  On 20 November 1974, the applicant acknowledged having received a copy of the commander's certificate. The battalion commander indicated he was personally aware of the applicant's situation and recommended approval of the bar to reenlistment.  On 26 November 1974, the brigade commander approved the action to bar the applicant from enlistment/reenlistment in the U.S. Army.

4.  On 12 December 1974, the company commander notified the applicant of his intent to initiate separation action to discharge him under the provisions of Headquarters, Department of the Army letter, dated 20 August 1973, subject: Expeditious Discharge Program (EDP).

   a.  The commander stated the applicant demonstrated that he was unable to adapt to military life, which hindered his duty performance; he had character disorders which were uncorrectable at the time; and he was unable to mentally sort out his personal affairs and establish a list of priorities with regard to his military duties versus his personal affairs.

	b.  The applicant was advised that the final decision as to whether he would be discharged and, if so, the type of discharge he would be issued rested with the discharge authority.  The applicant was also advised of his rights.

5.  On 12 December 1974, the applicant acknowledged with his signature that he had been notified of the basis for the contemplated separation action under the EDP and he voluntarily consented to the discharge.  He also acknowledged that he understood he could withdraw his voluntary consent to the discharge any time prior to the date the discharge authority approved his discharge.

6.  The company commander recommended approval of the applicant's separation under the EDP and forwarded the action to the separation authority.

7.  On 13 December 1974, the lieutenant colonel serving as the special court-martial convening authority, and the authorized separation authority in the applicant's case, approved the recommendation for separation under the provisions of the EDP and directed the applicant be issued an Honorable Discharge Certificate.

8.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 9 January 1975 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-37, and his service was characterized as honorable.  At the time he had completed 1 year,
1 month, and 14 days of net active service.

9.  There is no evidence in the applicant's military personnel records that shows he injured his left arm.

10.  A copy of Headquarters, National Personnel Records Center, St. Louis, Missouri, letter, dated 6 July 1994, responding to an inquiry from Congressman Peter G. T_________, on behalf of the applicant, shows the applicant's medical records were loaned to the Department of Veterans Affairs (DVA) under claim
021 42 0071 and that the applicant should contact the nearest DVA office to obtain copies of the records.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army.  The regulation in effect at the time, as updated by Headquarters, Department of the Army, DAPE-MPE-PS, letter, dated 20 August 1973, established the basic authority for separation of enlisted personnel under the provisions of Chapter 5 (Separation for the Convenience of Government), paragraph 5-37, under the EDP.  The EDP provided for the separation of Soldiers who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of one or more of the following conditions:  poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, and/or failure to demonstrate promotion potential.  Members separated under the EDP could be awarded a character of service of honorable or general, under honorable conditions, as appropriate.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was medically discharged because he injured his left arm while serving in the Army; however, Army officials did not recognize his injury and rushed his administrative discharge.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  There is no evidence of record, and the applicant provides insufficient evidence, to support his claim he injured his left arm while serving in the Army or that Army officials rushed his administrative discharge.  Thus, the applicant's contention is not sufficiently mitigating to warrant relief.

4.  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.  Therefore, in view of all 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)                                         AR20090016877



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ABCMR Record of Proceedings (cont)                                         AR20090016877



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