IN THE CASE OF:	  

		BOARD DATE:  24 January 2013

		DOCKET NUMBER:  AR20120010995 


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 his honorable discharge be changed to a medical discharge.

2.  The applicant states:

* He was discriminated against and harassed because he was a Mexican
* He was not allowed to have a medical discharge with disability severance pay
* After he arrived in Germany he became very ill with chronic sinus infections and was given lots of antibiotics
* Because of his poor health he opted for an expeditious discharge 

3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty)
* Service personnel records
* Service medical records
* Medical records, dated 2003, 2010, and 2012

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 24 June 1974 for a period of 
3 years.  He completed his training and was awarded military occupational specialty 75B (unit clerk).  He arrived in Germany on 23 November 1974. 

3.  On 8 April 1975, he was notified of his pending separation for failure to maintain acceptable standards for retention under the Expeditious Discharge Program under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 5-37.  The unit commander cited the applicant's negative attitude coupled with an inability to adjust to military life. 

4.  On 8 April 1975, he acknowledged notification of his proposed discharge, voluntarily consented to the separation, and elected not to make a statement on his behalf.  

5.  On 15 April 1975, he underwent a separation physical examination and was found qualified for separation.  Item 20 (Sinuses) of his Standard Form 88 (Report of Medical Examination) shows he was rated normal.

6.  On 28 April 1975, the separation authority approved the recommendation for separation and directed that the applicant be furnished an honorable discharge.

7.  He departed Germany on 6 May 1975.

8.  He was accordingly discharged on 7 May 1975 under the provisions of Army Regulation 635-200, paragraph 5-37, under the Expeditious Discharge Program for failure to maintain acceptable standards for retention.  He completed a total of 10 months and 14 days of total active service.

9.  There is no evidence which shows he was diagnosed with any medical condition prior to his discharge. 

10.  He provided service medical records which show:

* He was treated for knee pain, a rash, sinusitis, and various other ailments
* He was issued a temporary profile for chondromalacia patella (right)
11.  He also provided medical records, dated 2003, 2010, and 2012, which state:

* He had a significant degree of problems with chronic sinusitis for a number of years
* He has had multiple courses of antibiotics
* He has had some significant nasal obstruction and facial pain
* He was treated for tinnitus
* He was treated for sinus issues and tinnitus   

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5, in effect at the time, 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 that 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.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  Issuance of an Honorable Discharge Certificate was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade, and general aptitude.  A general discharge is a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.

13.  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.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends after he arrived in Germany he became very ill with chronic sinus infections and he should have received a medical discharge.  However, contemporaneous medical evidence shows he was found qualified for separation on 15 April 1975 and his sinuses were rated normal. 

2.  He also contends he was discriminated against and harassed because he was a Mexican.  However, there is no evidence of record and he provided no evidence which shows he was a victim of discrimination.  

3.  There is also no evidence of record to show he was ever medically unfit to perform his duties.  Therefore, there is insufficient evidence to show the applicant was eligible for physical disability processing and there is no basis for a medical discharge.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he elected not to do so.

5.  Therefore, the type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

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)                                         AR20120010995





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ABCMR Record of Proceedings (cont)                                         AR20120010995



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