IN THE CASE OF:	  

		BOARD DATE:	  19 May 2011

		DOCKET NUMBER:  AR20100028535 


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 item 9c (Authority and Reason) of his DD Form 214 (Report of Separation from Active Duty) to show his discharge was based on medical issues.

2.  The applicant states item 9c is incorrect and should be based on medical reasons due to an ankle injury.  He contends that when he was asked to perform during training, he was hurting due to an injury.  He was in pain and they were trying to force him to do training.  He now has problems with his ankle.

3.  The applicant provides a DD Form 214, a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), a statement from his former first sergeant (1SG), and a third-party statement.

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 in the Regular Army on 26 April 1977.

3.  A Trainee Discharge Program (TDP) Counseling Form shows he was counseled by a noncommissioned officer (NCO) on three occasions during the period 5-7 May 1977.  In this statement, the NCO stated the applicant was disrespectful and would not attempt to train.  He went to sick call every day, missed several formations, and did everything he could to get out of any type of work.  The NCO recommended the applicant's separation from the service.  This form also shows he was counseled on two occasions by his company commander who stated that the applicant did not feel fit for military service and wanted to get out.  He was willing to go to any lengths to get out and had become a disciplinary problem.  He was referred to the 1SG for further counseling and rehabilitative attempts.

4.  In a statement, dated 11 May 1977, the applicant's 1SG stated he counseled the applicant on three occasions during the period 9-11 May 1977 and found he had a very poor attitude and refused to try anything.  He tried to skip a drug abuse class and on 11 May 1977 he had to get him from the hospital when he became insubordinate and unruly toward the doctor and a specialist five.  The 1SG recommended his discharge due to his lack of motivation and extremely poor attitude.

5.  On 13 May 1977, his company commander informed him he was initiating action to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-39, the TDP.  The commander cited the applicant's lack of motivation and negative attitude which rendered him unsuitable for further military service as the reasons for the proposed separation.  He had sufficient time for improvement since his last counseling sessions but none had been noted.  He was advised of his rights to present any rebuttal or statements in his own behalf and to request a separation physical if he felt his physical status had changed since his last examination.  On the same date, he acknowledged the proposed separation action.  He elected not to submit a statement in his own behalf.  He also elected not to undergo a medical examination prior to separation.

6.  On 16 May 1977, the separation authority approved the recommendation and directed the applicant's separation with his service characterized as honorable.  On 23 May 1977, he was discharged accordingly.  He completed 28 days of active duty service.

7.  He provided a VA Form 21-4138, dated 22 June 2010, in which he states he was denied medical attention prior to his release from active duty and that there may not be any record of the injury to his right foot and ankle.  He also provided a third-party statement in which the author indicates that certain medical records were destroyed in order to protect patient's confidentiality.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  The regulation in effect at the time governed the TDP.  This program provided for the separation of service members who lacked the necessary motivation, discipline, ability, or aptitude to become productive Soldiers or failed to respond to formal counseling.  The regulation required that the service member must have voluntarily enlisted; must have been in basic, advanced individual, 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 his or her current enlistment by the date of separation.  The regulation provided that Soldiers could be separated when they demonstrated they were not qualified for retention due to failure to adapt socially or emotionally to military life; could not meet minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline; or demonstrated character and behavior characteristics not compatible with satisfactory continued service.

9.  Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his or her office, grade, rank, or rating.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DD Form 214 should be corrected to show his separation was based on medical reasons has been carefully considered.

2.  The evidence of record confirms his discharge was based upon his inability and/or refusal to perform his duties.  The evidence also confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  There is no evidence in his military file and he provided none that shows he was unable to perform his duties because of a medical condition.  He also was advised of his right to a separation physical examination if he felt his physical status had changed since his last examination; however, he refused a separation medical examination.

4.  Based on the foregoing, there is no basis to grant 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 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)                                         AR20100028535



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ABCMR Record of Proceedings (cont)                                         AR20100028535



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