BOARD DATE:	    20 March 2012

		DOCKET NUMBER:  AR20110016253


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 (Certificate of Release or Discharge from Active Duty) to show he was medically retired with an 80 percent (%) service-connected disability.

2.  The applicant states he was fraudulently discharged under the Expeditious Discharge Program (EDP).  He states he believes he should have been medically retired due to an injury he sustained to his Achilles tendon while in advanced individual training (AIT).

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 enlisted in the Regular Army on 10 June 1980.  His record shows he completed basic combat training; however, he failed to complete AIT in two separate military occupational specialties (MOS), 76Y (Unit Supply Specialist) and 68G (Aircraft Structure Repairer).  

3.  On 7 April 1981, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for disorderly conduct in public and wrongful possession of marijuana, on 6 January 1981.

4.  On 23 September 1981, he was notified by his immediate commander that he was being recommended for discharge from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-31 (EDP).  The commander cited the applicant failed two separate MOS-qualifying courses of instruction as the basis for his recommendation.

5.  On 24 September 1981, he 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 acknowledged he had been provided the opportunity to consult with an officer of the Judge Advocate General's Corps and he elected not to submit statements in his own behalf.      He also acknowledged he understood he may expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He further acknowledged he understood he could withdraw his voluntary consent to the discharge any time prior to the date the discharge authority approved his discharge.

6.  On 2 October 1981, the appropriate authority approved the recommendation for discharge and that day he was discharged accordingly under the provisions of Army Regulation 635-200, paragraph 5-31h (1), due to failure to maintain acceptable standards for retention.  The DD Form 214 he was issued shows he completed 1 year, 3 months, and 23 days of active service during this period of enlistment, and his characterization of service was honorable.

7.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 5 provided that members who had completed at least 6 months, but less than 36 months of continuous active service on their first enlistment, and who had demonstrated they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential, could be discharged under the EDP.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No 
member would be discharged under this program unless he/she voluntarily consented to the proposed discharge.  Issuance of an Honorable Discharge Certificate was predicated upon proper military behavior and proficient performance of duty during the member's enlistment with due consideration for the member's age, length of service, grade, and general aptitude.  

8.  His service medical record was not available for review.  There is no documentation in the available record, nor has he provided any documentation, that shows he was injured during AIT, or that such an injury was of the severity to warrant his entry into the Physical Disability Evaluation System (PDES).

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the 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 (MEB). Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

10.  Army Regulation 635-40, paragraph 2-2b(1), in effect at the time, provided that when a member was being separated by reasons other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she was scheduled for separation or retirement created a presumption that he or she was fit.  This presumption could be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

11.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30%.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he believes he should have been retired due to a medical injury incurred during active military service.

2.  His medical records were not available for review, and his available record contains no documentation that shows he was injured during his period of military service, or that such an injury was of the severity to warrant his entry into the PDES.  

3.  He was properly and equitably discharged in accordance with the regulations in effect at the time.  Absent evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Therefore, there is no basis to grant the requested relief.

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)                                         AR20090018593



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ABCMR Record of Proceedings (cont)                                         AR20110016253



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