IN THE CASE OF:	  

		BOARD DATE:	  12 May 2011

		DOCKET NUMBER:  AR20100025105 


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, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show that he was medically discharged.

2.  The applicant states he:

* should have received a medical discharge because his feet and legs were injured
* could not perform all of the duties asked of him because he could not walk

3.  The applicant provides no additional evidence.

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 was ordered to active duty for training from the Tennessee Army National Guard on 19 November 1960.  On 18 May 1961, he was released from active duty.  His DD Form 214 shows he completed 6 months of active service during this period.  He had been awarded military occupational specialty 112.10 (Heavy Weapons Infantryman).

3.  On 4 October 1961, he was inducted into the Army of the United States.

4.  On 19 July 1962, he requested discharge due to a physical disability that appeared to have existed prior to 4 October 1961 and was not incident to or aggravated by prior or subsequent military service.  He elected not to exercise his right to be evaluated by a physical evaluation board.

5.  On 8 August 1962, the regimental surgeon stated the applicant had been seen by him and at the orthopedic clinic on numerous occasions.  He had a permanent L-3 physical profile with limitations for walking and standing.  The orthopedic consultant felt the applicant could perform his duties within the limits of his physical profile and if he could or would not, it was a matter of lack of motivation.  The regimental surgeon concluded by stating the applicant's basic premise on his 1049 that "I have been notified that based on preliminary findings, I am considered unfit for retention in the military service" was untrue.  He had been seen by a consultant at least two times and declared fit for duty on both occasions.  It was the opinion of the orthopedic consultant that if he could not live up to his physical profile limitations, he should be administratively separated.  The regimental surgeon concurred.

6.  On 30 August 1962, the applicant's unit commander notified him that it was his intent to recommend him for separation from military service under the provisions of Army Regulation 635-209 (Personnel Separations – Discharge – Unsuitability) with issuance of a General Discharge Certificate.  The commander stated the applicant was pending disciplinary action for destruction of private property.  He did little to improve his knowledge of his job and displayed a lack of interest in anything that was military.  He had no courtesy and he had a careless attitude requiring constant supervision to get a job done.  The commander also stated the applicant had been transferred within his platoon as well as to another unit; therefore, further attempts for rehabilitation would be futile.

7.  On 31 August 1962, the unit commander recommended that the applicant be discharged for unsuitability under the provisions of Army Regulation 635-209.  The commander's recommendation was based on the applicant's complete lack of motivation to adjust to military service.

8.  On 25 September 1962, the applicant underwent a psychiatric evaluation.  The examining psychiatrist diagnosed the applicant with emotional immaturity.  He was recommended for evaluation because he attempted to shirk duty and leave the service because of "alleged" physical ailments.  This referred primarily to an "L3" (lower extremity) physical profile for severe flat feet which resulted in a 15-minute limitation in walking and marching.  Because of continued complaints about the unit "messing up" with his physical profile despite being on special details, the unit felt he wanted out of duty altogether.  This was certainly consistent with his attitude throughout service, "that he should never been drafted."  His past history contained frequent episodes of trauma and injury which might be consistent with an attitude of "using" physical ailments to get out of unpleasant jobs, although he denied this.  The examining psychiatrist stated the applicant was a sullen and angry Soldier who felt he had been mistreated by his unit and there was no evidence of a disqualifying psychiatric illness.

9.  On 5 October 1962, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-209 for unsuitability with the issuance of an under honorable conditions (general) discharge.

10.  On 29 October 1962, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-209 with a character of service of under honorable conditions.  He completed 1 year, 6 months, and 26 days of total active service.

11.  On 8 September 1972, the Army Discharge Review Board disapproved his request for a change in the type and nature of his discharge.

12.  His available records are void of any evidence and he has not provided any evidence showing his flat feet were either incurred in or aggravated by his military service.  Additionally, there is no indication in his records that he underwent a medical evaluation with subsequent referral to a medical evaluation board or referral to a physical evaluation board.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides the standards for medical fitness for retention and separation, including retirement, and states that the medical treatment facility commander with primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

14.  Army Regulation 635-209, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability.  Action was taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.  Evaluation by a medical officer was required and, when psychiatric indications were involved, the medical officer must be a psychiatrist, if one was available.  An honorable or general discharge was considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DD Form 214 should be corrected to show he was medically discharged because he injured his feet and legs was found to lack merit.

2.  The applicant's records show he elected not to appear before a physical evaluation board for his disability which existed prior to his entrance on active duty.  There is no evidence that indicates he had any service-connected medical conditions that required treatment at the time of separation or that his injuries contributed to his misconduct or impeded his ability to perform.

3.  The evidence of record shows his separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights.  The discharge proceedings were conducted in accordance with applicable law and regulations at the time and the character of his service is commensurate with his overall record of military service.  The reason for discharge and the characterization of service were both proper and equitable.

4.  He has not provided any evidence or a sufficiently mitigating argument to warrant an change to his discharge.  Therefore, there is insufficient evidence to grant him the requested relief in this case.


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 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)                                         AR20100025105



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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