IN THE CASE OF:	  

		BOARD DATE:	  23 June 2011

		DOCKET NUMBER:  AR20100029653 


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 honorable discharge to show medical discharge.

2.  The applicant states he was in the hospital nine times with pneumonia during his 5-month period of active duty.  He states he was in the hospital at the time of his discharge and does not recall much from that period.

3.  The applicant did not provide supporting documents with 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 was born on 24 August 1956.

3.  On 29 October 1973, the applicant's parents consented to his enlistment in the U.S. Armed Forces and signed a DD Form 873 (Consent, Declaration of Parent or Legal Guardian).

4.  On 31 October 1973, the applicant enlisted in the Regular Army for a 3-year period at the age of 17 years, 2 months, and 8 days.

5.  On 25 February 1974, the applicant accepted nonjudicial punishment for being absent without leave (AWOL) for 1 day.

6.  On 8 March 1974, his commander initiated separation action under the provisions of Department of the Army (DA) message, dated 011510Z August 1973.  The commander stated the applicant was unsuitable for retention in the U.S. Army because he showed a lack of motivation and had a negative attitude toward military service.  He stated the applicant's repeated periods of unauthorized absence from the company area, his AWOL offense, and his disobedience of orders made him unsuitable for continued service.

7.  The applicant was advised he would receive an honorable discharge.  He was informed that due to not completing his period of service as specified in his enlistment contract or the requisite period of active duty, the veterans' benefits normally associated with completion of honorable active duty service would be negatively affected, to include educational benefits.  He was advised he could provide rebuttal statements, he could have counsel represent him, and he had the right to request a separation physical.

8.  On 8 March 1974, he acknowledged receiving written notification showing he was being considered for separation prior to his expiration of his term of service.  He also acknowledged he understood that due to not completing the requisite active duty service period, his veterans' benefits would be negatively affected.  He indicated he did not desire representation by counsel, he did not desire a separation physical, and he would not make a statement or submit a rebuttal on his behalf.

9.  The approval authority approved his separation under the provisions of DA message, dated 011510Z August 1973.

10.  On 21 March 1974, he was honorably discharged.  His DD Form 214 (Report of Separation from Active Duty) confirms he was separated under the provisions of DA message, dated 011501Z August 1973.  He completed 4 months and 21 days of net active service with 1 day of lost time.

11.  No medical records were available for review.

12.  References:

	a.  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 lacked 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 U.S. Army Reserve; (2) was 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-the-job training prior to the award of an MOS, or would have completed no more than 179 days of active duty by the date of discharge, whichever occurred earlier; or (3) had demonstrated he or she was not qualified for retention for one or more of the following reasons:  (a) could not or would not adapt socially or emotionally to military life; (b) could not meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, or motivation; or (c) did not meet the moral, mental, or physical standards for enlistment including disqualifying drug use in accordance with Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program).  The program did not apply to personnel who should have been eliminated under the provisions of Army Regulation 635-200, paragraph 13-5a, for unfitness, or chapter 14 for fraudulent enlistment, or had demonstrated character and behavior characteristics not compatible with satisfactory continued service.  Individuals discharged under the authority of this message were given an honorable discharge.

	b.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of a disability incurred while entitled to basic pay.

	c.  Army Regulation 635-5 (Separation Documents) establishes standardized policy for preparing and distributing the DD Form 214.  This regulation states the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's separation at 17 years of age was initiated because he lacked the necessary motivation to conform to the military training environment and to follow the orders of his superiors.
2.  He provided no evidence to show he suffered repeated episodes of pneumonia that could have interfered with his ability to effectively soldier and comply with the basic orders of his superiors.  With no medical records and no separation physical, there is insufficient evidence to support changing a properly-constituted discharge document to show he was medically separated.

3.  In view of the foregoing, there is insufficient evidence to grant changing his discharge to a medical discharge.

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)                                         AR20100029653



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ABCMR Record of Proceedings (cont)                                         AR20100029653



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