IN THE CASE OF:	  

		BOARD DATE:	  23 August 2012

		DOCKET NUMBER:  AR20120003459 


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 change of his honorable discharge to a medical discharge.

2.  The applicant states:

	a.  His L5 disc was damaged while in basic combat training (BCT), but it was not known until he requested a copy of his DD Form 214 (Report of Separation from Active Duty) and medical records that he received on 22 July 2011.

	b.  He has a reenlistment (RE) code of "3" that means he could only reenlist with a release waiver from the doctor that treated his chronic lower back problem.

	c.  There is no evidence of any injury or physical condition on his Standard Form (SF) 88 (Report of Medical Examination).

	d.  He was told he had a sprain, not that his L5 disc was damaged.  He has lived with chronic pain in his back believing it was just a weak muscle that would not heal.

3.  The applicant provides:

* Letter from the National Personnel Records Center, St. Louis, MO, dated 22 August 2011
* Service medical and personnel records


* Department of Veterans Affairs (VA) letter, dated 19 March 2012
* DD Form 214

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 military records are not available for review.  However, this case is being considered using reconstructed records which primarily consists of the records provided by the applicant.

3.  He provided an SF 88, dated 26 November 1975, that shows he was found qualified for service in the Regular Army (RA).  His spine and other musculoskeletal areas were rated normal.

4.  The available record shows he enlisted in the RA on 28 November 1975.

5.  He provided a health record, dated 10 December 1975, that states:

* he reinjured his back picking up his duffel bag at the Reception Station
* he has difficulty performing Army duties
* he hurt his back lifting hay 3 months ago

6.  He provided an SF 513 (Clinical Record), dated 15 December 1975, that states:

* complains of lower back pain for 5-6 months following back injury
* in July 1975, he injured his back lifting hay
* pain since
* worse since in BCT
* had pain at time of physical examination for service but he was told it should get better


7.  His record is void of the specific facts and circumstances surrounding his discharge.  However, his DD Form 214 shows he was honorably discharged on 22 January 1976.  It also lists the authority for his separation as Department of the Army (DA) Message 011510Z, August 1973, with separation program designator (SPD) code of "JNF."

8.  DA Message DAPE-MPE, DTG 011510Z, August 1973 (Trainee Discharge Program), provided the authority for the discharge of enlistees before 180 days of active duty, and remained in effect through the publication of Interim Change 011735Z to Army Regulation 635-200 in December 1975.  It allowed for the discharge of RA enlistees prior to completion of training based on their inability to adapt; failure to meet training standards; failure to meet moral, mental, or physical standards; and possess a character and behavior disorder not compatible with continued service.  Members separated under these provisions received an honorable discharge.

9.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states that the SPD code JNF is the appropriate code to assign to Soldiers separated under the provisions of DA Message DAPE-MPE, 011510Z August 1973, by reason of Miscellaneous-General (Trainee discharge Program).  The SPD/RE Code Cross Reference Table stipulates that an RE-3 code will be assigned to members separated under these provisions with an SPD code of JNF.

10.  Army Regulation 635-200 (Active duty Enlisted Administrative Separations) states that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve (USAR).  Table 3-1 included a list of the RA RE codes:

	a.  RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible for enlistment unless a waiver is granted.


11.  Army Regulation 635-40 (Personnel Separations – Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army Physical Disability Evaluation System, Soldiers who sustain or aggravate physically unfitting disabilities must meet several lines of duty criteria to be eligible to receive retirement and severance pay benefits.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

12.  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/her office, rank, grade, or rating because of disability incurred while entitled to basic pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he damaged his back in BCT.  However, medical records provided by the applicant show he injured his back in July 1975 while lifting hay (prior to his enlistment) and that he reinjured his back picking up his duffel bag at the Reception Station.

2.  There is no evidence of any medical proceedings that would have resulted in a medical discharge.  There is also no indication he was assigned an RE-3 code based on any medical condition; rather it was assigned based on his discharge under the Trainee Discharge Program based on his presumed inability to adapt to military life; failure to meet training standards; failure to meet moral, mental, or physical standards; or possess a character and behavior disorder not compatible with continued service.

3.  In the absence of evidence to the contrary, it must be presumed his separation processing was administratively correct and in conformance with applicable regulations.  Without the discharge packet to consider, it is presumed the authority and reason for his separation was commensurate with his overall record of service.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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 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)                                         AR20120003459



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ABCMR Record of Proceedings (cont)                                         AR20120003459



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