IN THE CASE OF:	  

		BOARD DATE:	  17 July 2012

		DOCKET NUMBER:  AR20120010351 


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 general discharge to a medical discharge.

2.  The applicant states his service-connected medical conditions from active duty include jungle rot and infection of the right foot, nerve conditions, and lower back injuries resulting from an 81mm mortar falling on his back during training.

3.  The applicant provides:

* Two Standard Forms (SF) 513 (Medical Record – Consultation Sheet)
* Current chiropractic condition
* DA Form 3349 (Medical Condition – Physical Profile Record)

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 27 September 1973 for a period of 3 years.  He completed basic combat training at Fort Jackson, SC and he was reassigned to Fort Campbell, KY for completion of advanced individual training.

3.  On 21 March 1974, he was seen for pain in the L-5 area, radiating to the lower border of the scapula on the left side.  His pain began 2 months earlier.  He was issued a temporary physical profile for lumbar pain.  The DA Form 3349 stated he was medically qualified for duty with temporary restrictions.  He was assigned a functional limitation of no lifting over 10 pounds and returned to duty.

4.  Additionally, on 21 March 1974 his platoon leader and platoon sergeant submitted the following statements:

	a.  the platoon sergeant stated the applicant was attached to his platoon for completion of advanced individual training but after the second retest of the 81mm examination, he was not qualified in military occupational specialty (MOS) 11C (Indirect Fire Infantryman) and he was not capable of retaining the training he received.

	b.  the platoon leader stated the applicant came to his platoon as a rehabilitative case.  He had a daily excuse to either go on sick call or extend a physical profile.  His inability to perform even the most simple tasks because of his physical condition kept him from sweeping under the bed, putting together his wall-locker, and attending training missions.  He was counseled but failed even the most minimum standards.  The platoon leader recommended the applicant's discharge.

5.  On 22 March 1974, he underwent a separation physical examination at the U.S. Army Hospital, Fort Campbell.  The military doctor noted his lumbar pain but found him medically qualified for separation.

6.  On 25 March 1974, he was seen for back pain.   His radiological report indicated that five lumbar type vertebral bodies were seen with the fifth being transitional in nature with broad articulating transverse processes on both sides.

7.  On 1 April 1974, the company commander stated the applicant was unable to adjust either mentally or physically to the rigors of military life.  After the applicant 

failed to complete 11C training, it was decided to transfer him to another company for training as an 11B (Light Weapons Infantryman).  However, since his transfer, he participated in almost no company training sessions and he showed a total lack of motivation, enthusiasm, and ambition required to learn his MOS.  He counseled the applicant who stated he had trouble walking, he could not carry his equipment, and he lacked ambition to meet standards.  A rehabilitative transfer would not have resulted in any change in attitude or personal conduct.  His discharge was in the best interest of the Army.

8.  On 17 May 1974, he was again issued a temporary physical profile for low back pain secondary to an 81mm tube falling on back.  The profile indicated he was medically qualified for duty with temporary restrictions.  He was assigned the physical limitation of no lifting greater than 10 pounds and returned to duty. 

9.  On 28 May 1974, he was seen at the podiatry clinic for infected blisters on his right foot.  He had problems with his foot for the past 6 months.  He had a watery fluid and possible pus inside the sole of the right foot behind the great toe.  His diagnosis was indicated as "superficial" and he was treated and prescribed medication.

10.  On 5 June 1974, the company commander again stated the applicant continued to use his physical problems to do nothing including minimal tasks. The applicant's reaction was that the Army owed him because of his physical condition.  However, he completed a physical examination on 23 March 1974 that showed he was qualified for separation.  Evidently, he wanted something for nothing.

11.  On 12 June 1974, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-212 (Personnel Separations) for unsuitability.  His specific reasons were:

* Lack of motivation, enthusiasm, and ambition
* Failure to meet minimum standards
* Frequent sick-call rides
* Failure to be awarded an MOS

12  On 12 June 1974, the applicant was counseled and advised of his rights concerning separation under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), chapter 13; however, although he indicated he wanted to appear before a board of officers represented by counsel, 

he refused to acknowledge receipt of the separation memorandum.  The acknowledgement statement – without his signature – indicated that:

* he was advised of the basis for the contemplated separation for unsuitability, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him
* his understanding that he could encounter substantial prejudice in civilian life in the event an under honorable conditions (general) discharge was issued to him
* his understanding that as a result of the issuance of an undesirable discharge he could be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could encounter substantial prejudice in civilian life
* the acknowledgement statement is marked with "request consideration of his case by a board of officers and personal appearance before a board of officers"

13.  On 12 June 1974, the applicant's immediate commander initiated separation action against the applicant for unsuitability; however, there is no indication of the final disposition of this action.

14.  On 2 August 1974, he was issued a DA Form 3349 by a medical doctor at Walter Reed Army Medical Center (WRAMC) for a temporary medical profile for low back pain.  This profile also indicated he was medically qualified for duty with temporary restrictions.  He was assigned the physical limitation of no assignment requiring prolonged handling of heavy material, no overhead work, and no pull-ups or push-ups.

15.  On 28 August 1974, he appears to have been admitted to the U.S. Army Hospital at Fort Campbell.  His narrative summary shows:

	a.  his past history and review of symptoms were noncontributory and his physical examination was negative with the exception of low back pain.  He was placed on absolute bed rest with no abatement of his symptoms.  He was started on flexion exercises but refused to do this because he claimed it was painful.

	b.  a psychiatric consultation was obtained and it was felt if the remainder of his workup was negative, they would consider malingering.  He was also evaluated by the clinical psychologist and their impression at the time was psychogenic pain.  He mentioned on several occasions that he had been offered 

a 20 percent (%) disability but he thought it was not enough and wanted 50%.  At all times his pain was expressed with complete lack of facial expression.  He was made ambulatory in the hospital with great difficulty, finally resorting to a lumbosacral corset.

	c.  The military doctor stated he personally spoke to his physician at WRAMC who, in interviewing the record with him, felt perhaps the applicant had low back pain but he exaggerated this attempt to achieve his own needs.

	d.  His final diagnosis was that of low back pain with inordinate psychosomatic overlay, secondary to an injury sustained on 24 January 1974; and transitional vertebral body, lumbar spine, with partial sacralization.

16.  On 9 October 1974, the applicant's immediate commander initiated a memorandum, subject:  Certificate of Unsuitability for Reenlistment, against the applicant.  He stated the applicant had been on active duty for 12 months without an MOS.  Since his assignment to the unit, he had either gone on sick call to renew his profile and/or used various other reasons to avoid training with the unit.  He has not done any type of work and uses his back problems as an excuse which the doctors have not been able to confirm with various tests.

17.  The applicant refused to sign the acknowledgement statement.

18.  On 9 October 1974, the platoon leader indicated that:

	a.  he had previously counseled the applicant and even recommended his separation for unsuitability.  He indicated at the time that an 81mm mortar tube had struck him in the back and injured him.  He had been to the Fort Campbell hospital many times but doctors could not find anything wrong with him.  He was even sent to WRAMC on 16 August 1974 and he was given a temporary profile.  When the new company commander went to see him, he told the new commander that a mortar tube had struck his knee.

	b.  it appeared the applicant was using this incident as an excuse to miss training and receive disability compensation.  He had been examined by numerous physicians at Fort Campbell and WRAMC, but neither hospital found him seriously injured or disabled.  A physical examination was performed on
22 March 1974.  He was found medically qualified for separation.  He had failed to receive an MOS and he should be discharged immediately.

19.  On 9 October 1974, the new company commander concurred with the outgoing commander and recommended the applicant's discharge.  Accordingly, he forwarded a recommendation for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph
5-37, by reason of the applicant's failure to demonstrate adequate potential for promotion.  His performance, acceptability, and potential for service fell below the standards.  He was counseled regarding his promotion potential and he was afforded every opportunity for self-improvement.   He again showed little motivation, enthusiasm, or ambition.

20.  On 15 October 1974, his intermediate and senior commanders recommended approval with the issuance of a general discharge.

21.  Consistent with the chain of command's recommendations, the separation authority approved the applicant's discharge and ordered him discharged from the Army under the provisions of Army Regulation 635-200, paragraph 5-37, by reason of failure to demonstrate potential for promotion, with the issuance of a General Discharge Certificate.

22.  The applicant was accordingly discharged on 29 October 1974.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, paragraph 5-37, with a General Discharge Certificate.  He completed 1 year, 1 month, and 3 days of total active service.

23.  Nothing in his records shows:

* he suffered an illness or an injury of a permanent nature that rendered him unable to perform the duties required of his grade or military specialty
* he was issued a permanent physical profile that prevented him from performing the duties required of his grade of military specialty or warranted his entry into the physical disability evaluation system

24.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  It established that a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. When a member's service is characterized as general except when discharged by reason of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual's military personnel record.

25.  Army Regulation 635-200, paragraph 5-37 states that under the Expeditious Discharge Program, individuals who have demonstrated that they cannot or will 

not meet acceptable standards required of enlisted personnel in the Army, because of the existence of one or more of the following conditions, may be discharged:  (1) poor attitude; (2) lack of motivation; (3) Lack of self-discipline; (4) Liability to adapt socially or emotionally; (5) failure to demonstrate promotion potential.  Individuals discharged under this program may be awarded an Honorable or a General Discharge Certificate as deemed appropriate.

26.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) currently in effect establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness).

DISCUSSION AND CONCLUSIONS:

1.  According to multiple statements by his chain of command, the applicant lacked motivation, enthusiasm, and ambition.  He was counseled by members of his chain of command to no avail.  He failed to train for or be awarded an MOS and he had no promotion potential.  He indicated at the time that an 81mm mortar tube had struck him in the back and injured him.  More importantly, he had been to the Fort Campbell hospital as well as WRAMC many times but doctors could not find anything wrong with him.

2.  Additionally, according to his chain of command, it appeared the applicant was using this incident as an excuse to miss training and receive disability compensation.  He had been examined by numerous physicians but he was not found seriously injured or disabled.  A physical examination was performed on
22 March 1974.  He was found medically qualified for separation.  His physician personally spoke with his other physician at WRAMC and they opined that the applicant exaggerated his condition to obtain what he wanted.

3.  Having failed to demonstrate adequate potential for promotion, and because his performance, acceptability, and potential for service fell below the standards, his chain of command initiated discharge action against him.  His discharge was 

in accordance with applicable regulations and all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.

4.  Although he was seen for back pain and a foot infection, he was issued profiles of a temporary nature that clearly show he was medically qualified for service.  There is no evidence in his records and he did not provide substantiating evidence that shows he was medically disqualified for retention or that his low back pain warranted consideration by the Army's physical disability evaluation system.

5.  In view of the foregoing evidence, he is not entitled to a medical separation.

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)                                         AR20120010351



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ABCMR Record of Proceedings (cont)                                         AR20120010351



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