IN THE CASE OF:	  

		BOARD DATE:	  29 May 2012

		DOCKET NUMBER:  AR20110022370 


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 the separation date shown on his DD Form 214 (Report of Separation from Active Duty).

2.  The applicant states he was injured during basic training, he was not provided medical treatment for his left knee and right ankle, and he was discharged on
20 June 1977.

3.  The applicant provides, in support of his application, two photographs.

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 U.S. Army Reserve on 2 May 1977.  He entered active duty in the Regular Army (RA) on 3 May 1977 for a period of 3 years.
3.  A Report of Psychiatric Evaluation, dated 12 May 1977, shows the applicant was examined on 11 and 12 May 1977 by a psychiatrist.  The psychiatrist found the applicant exhibited signs of social/emotional maladjustment to the military, that the prognosis for a stable adjustment to the military was extremely poor, and that it would be appropriate to separate the applicant from active duty.

4.  On 13 May 1977, the company commander notified the applicant of his intent to initiate separation action to effect discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 5 (Separation for the Convenience of the Government), paragraph 5-39 (Trainee Discharge Program (TDP)).  The reasons for his proposed actions were that the applicant was unsuited to military life, emotionally immature and unstable, and he had no potential as a Soldier.  The applicant was advised of his rights and of the separation procedures involved.  He was also advised that, if the separation was approved, he would be furnished an honorable discharge.

5.  The applicant acknowledged receipt of his proposed separation action.  He indicated with his initials and signature that he did not desire to:

* have counsel assist him in explaining the discharge procedures
* make statements or submit a rebuttal in his behalf
* have a separation medical examination

6.  The immediate and intermediate commanders recommended approval of the applicant's separation, and the separation authority approved the separation action.

7.  Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, Orders 99-25, dated 19 May 1977, discharged the applicant from the RA effective 20 May 1977.

8.  His DD Form 214 shows he was honorably discharged in accordance with Army Regulation 635-200, paragraph 5-39.  It also shows in:

* item 9d (Effective Date):  "77 05 20" (20 May 1977)
* item 15 (Date Entered Active Duty This Period):  "77 05 03" (3 May 1977)

	a.  He completed 18 days of net active service this period; 1 day of inactive service; and 19 days of total service for pay.

	b.  Item 29 (Signature of Person Being Separated) shows the applicant placed his signature on the document.

9.  A review of the applicant's military service records failed to reveal any evidence that he was found medically unfit for military service based on a physical injury or disability.

10.  In support of his application, the applicant provides copies of two photographs of soldiers in fatigue uniforms (one with a date of "Jun 77" imposed on it) with handwritten captions, as follows:

* "Wheelchair was here."
* "We took this picture to show that I was hurt.  So I would have proof of my injuries of my legs, my left knee and my right ankle.  They carried me from my wheelchair and laid me down on the grass and then took another picture of me with the whole troop together."
* "I'm on the bottom of this picture with my legs bent."

11.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures regarding separation documents.  It also established standardized policy for preparing and distributing the DD Form 214.

	a.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states that the source documents for entering information on the DD Form 214 will be the Enlisted Qualification Record, Officer Qualification Record, Personnel Qualification Record, Officer Record Brief, enlistment/reenlistment documents, personnel finance records, discharge documents, separation orders, Military Personnel Records Jacket, or any other document authorized for filing in the Official Military Personnel File.

	b.  Section II (Preparation of DD Form 214) contains item-by-item instructions for completing the DD Form 214.  It shows for:

* item 9d:  enter effective date of discharge shown on separation orders, using 6-digit numerals
* item 15:  enter date individual entered active duty this period, using
6-digit numerals

DISCUSSION AND CONCLUSIONS:

1.  Records show the applicant entered active duty in the RA on 3 May 1977.

2.  Orders discharged the applicant from the RA effective 20 May 1977 and the applicant's DD Form 214 shows he was honorably discharged on 20 May 1977. In addition, the applicant acknowledged with his signature on the DD Form 214 that he was discharged on 20 May 1977.

3.  There is no evidence of record that shows the applicant was retained on active duty beyond 20 May 1977.

4.  Therefore, in view of all of the foregoing, there is no basis for correcting the discharge date that is recorded on his DD Form 214.

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)                                         AR20110022370



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ABCMR Record of Proceedings (cont)                                         AR20110022370



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