BOARD DATE:	  1 November 2011

		DOCKET NUMBER:  AR20110009373 


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:

	a.  item 15 (Date Entered Active Duty This Period) of his DD Form 214 (Report of Separation from Active Duty) be corrected to show 17 January 1978;

	b.  his effective date of discharge from his component be corrected on his discharge orders; and

	c.  his honorable discharge be changed to a medical discharge.

2.  The applicant states, in effect:

* He was on active duty from 17 January 1978 to 2 May 1978
* He received an Article 15 for being absent without leave (AWOL) from his unit for 2 days
* His discharge effective date is 3 May 1978
* His discharge orders incorrectly show his effective date from his component is 4 June 1978
* His medical records show he had infected feet and an infected toe nail
* He still has problems with his feet
* He was discharged for medical reasons 




3.  The applicant provides:

* DD Form 214
* DA Form 2-1 (Personnel Qualification Record)
* Discharge orders, dated 2 May 1978
* DA Form 2627 (Record of Proceedings Under Article 15, UCMJ)
* Service medical records 

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 enlistment contract shows he enlisted in the U.S. Army Reserve (USAR) on 17 January 1978 under the delayed enlistment program (DEP) for a period of 6 years.  On 13 March 1978, he was discharged from the DEP and he enlisted in the Regular Army (RA) on 14 March 1978 for a period of 4 years.  

3.  Training and Doctrine Command (TRADOC) Forms 871-R (TDP [Trainee Discharge Program] Counseling) show the applicant was counseled on:

* 4 March 1978 for below standard performance
* 24 March 1978 for negative attitude and performance
* 27 March 1978 for behavior (refused to train and follow orders), resentful attitude, and lack of discipline toward his superiors
* 28 March 1978 for refusing to train and failure to adapt to Army life

4.  On 12 April 1978, nonjudicial punishment was imposed against the applicant for being AWOL from 6 April 1978 to 8 April 1978.



5.  The applicant's commander stated the applicant was a substandard Soldier due to lack of motivation and self discipline, he received one Article 15 for being AWOL, he has shown no improvement in adapting to military life, and he recommended the applicant be discharged.

6.  On 17 April 1978, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separation - Enlisted Personnel), paragraph 5-33, the TDP.  The unit commander's reasons for the proposed action were:

* His defiant and arrogant attitude toward authority
* His absence from the unit clearly showed he did not intend to become a good Soldier
* His utter disregard for the oath he took made his continued presence in the Army totally unacceptable

7.  On 17 April 1978, the applicant acknowledged notification of his pending separation and proposed Honorable Discharge.  He indicated that if he did not 
have sufficient service, he understood that due to non-completion of requisite 
active duty time Veterans Administration (VA) and other benefits normally associated with completion of honorable active duty service would be affected.  He elected not to make a statement in his behalf.  He also elected not to have a separation medical examination if his discharge was approved.

8.  On 18 April 1978, he underwent a separation physical examination and was found qualified for separation with a physical profile of 111111.  Item 36 (Feet) of his Standard Form 88 (Report of Medical Examination) shows he was rated abnormal due to an infected toe nail. 

9.  On 28 April 1978, the separation authority approved the recommendation for separation and directed that the applicant be furnished an honorable discharge.

10.  Paragraph 3 of the applicant's discharge orders, dated 2 May 1978, show he was discharged from the RA (component) effective 3 May 1978.  Paragraph 4 of these orders show another Soldier was discharged from his component on 
4 June 1978.

11.  Accordingly, on 3 May 1978, the applicant was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-33.  He had completed 1 month and 18 days of creditable active service with 2 days of lost time.



12.  Item 15 of the applicant's DD Form 214 shows the entry "78 03 14" 
[14 March 1978].  Item 18d (Prior Inactive Service) of this DD Form 214 shows he had 1 month and 27 days of prior inactive service (i.e., his USAR DEP service).

13.  There is no evidence of record which shows the applicant was diagnosed with any medical condition prior to his discharge on 3 May 1978.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 5 provides for separation for the convenience of the Government.  This chapter, in pertinent part, states that the TDP provides that commanders may expeditiously discharge members who lack the necessary motivation, discipline, ability, or aptitude to become a productive Soldier when they were voluntarily enlisted in the RA, Army National Guard, or USAR; or are in basic combat training or basic training or in military occupational specialty training (MOS) in advanced individual training, a service school or on job training prior to the award of the MOS for which being trained and will have completed no more than 179 days active duty, or initial active duty for training, on current enlistment by the date of discharge.  

15.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):

* P - physical capacity or stamina
* U - upper extremities
* L - lower extremities
* H - hearing and ears
* E – eyes
* S - psychiatric

16.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.

17.  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 disability incurred while entitled to basic pay.

18.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.

19.  Army Regulation 140-1 (Army Reserve Mission, Organization, and Training) provides policy guidance on the mission, organization, and training of the USAR.  It states the USAR Control Group (Delayed Entry) consists of members enlisted under Army Regulation 601-210 (Active and Reserve Components Enlistment Program).  They are in a non-pay status and will not take part in Reserve training.

20.  The DEP is defined as a program where Soldiers are assigned to the USAR Control Group (Delayed Entry) until they enlist in the Regular Army.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends his date of entry on active duty should be 
17 January 1978, his enlistment contract shows he enlisted in the USAR under the DEP on 17 January 1978.  Soldiers in the DEP are not on active duty.

2.  The evidence of record shows the applicant enlisted in the RA on 14 March 1978 which is properly shown in item 15 of his DD Form 214.  Therefore, there is no basis for granting his request to amend item 15 of his DD Form 214. 

3.  His request to correct the effective date of discharge on his discharge orders was noted.  However, his discharge orders show his effective date of discharge from the RA is 3 May 1978, not 4 June 1978. 

4.  It is noted that the applicant's feet were rated as abnormal because of an infected toe nail on 18 April 1978.  However, medical evidence also shows he was found to be physically qualified for separation with a physical profile of 111111 on that date.  There is no evidence of record to show he was ever medically unfit to perform his duties.  As such, there is no basis for granting the applicant's request for 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 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)                                         AR20110009373





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ABCMR Record of Proceedings (cont)                                         AR20110009373



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