BOARD DATE:	  9 July 2013

		DOCKET NUMBER:  AR20120022468 


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 his DD Form 214 (Report of Separation from Active Duty) to show he received a medical discharge.

2.  The applicant states between 28 July and 29 August 1975 the Department of Veterans Affairs (VA) Medical Center took X-rays of his back, when he complained, and they found something wrong.  They stated he would receive a medical discharge.

3.  The applicant provides:

* DD Form 214
* a 3-page letter
* a letter from the VA
* 16 pages of his service treatment records

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 record contains a Standard Form 88 (Report of Medical Examination), dated 28 July 1975, which shows he was qualified for enlistment.

3.  On 28 July 1975, the applicant enlisted in the Regular Army and he entered basic combat training at Fort Jackson, SC, on 8 August 1975.

4.  The applicant's record contains a Fort Jackson Form 8 (Evaluation for Discharge for Enlistees Before 180 Active Duty Days) which contains an initial observation and subsequent counseling of the applicant by his platoon sergeant and company commander.  It was observed that the applicant did not get along with his peers.  He was very immature and not motivated toward being a Soldier.  He was subsequently counseled for failure to participate as a member of the platoon because of repeated visits to sick call.  It was noted that the applicant wanted out of the Army because he could not get along with the "other boys."  

5.  A later counseling by his company commander revealed the applicant perceived himself as a "young boy," was a bed wetter, and he was so afraid that his peers would find out about his problem that he could not function as a member of the platoon.  It was noted the applicant went on sick call almost every day and received counseling for several hours at a time; however, he made no improvement in his outlook or constructive effort towards becoming a Soldier. 

6.  On 21 August 1975, his commander initiated action to discharge him from the U.S. Army in accordance with a Department of the Army message, dated 011510Z August 1973. 

7.  On 21 August 1975, the applicant acknowledged notification of the proposed honorable discharge from the U.S. Army and indicated he did not desire to have counsel assist him in explaining the discharge procedures or in making statements or rebuttals on his behalf.  He further indicated he did not desire a separation medical examination, he did not desire to make any statements, or submit a rebuttal in his behalf.

8.  On 25 August 1975, the separation authority approved the applicant's discharge from the U.S. Army with an honorable discharge.  He was accordingly discharged on 29 August 1975.  The DD Form 214 he was issued at the time shows he completed 1 month and 2 days of total active service with no lost time.

9.  The applicant provides copies of letters written to the VA Medical Center, Fort Jackson, SC, requesting his medical records.  In a letter dated, 3 October 2012, he states while in basic training he received X-rays due to cramping in his stomach which resulted in the discovery of a cyst in the small of his back which was leaking and causing his cramps.  Then a guy stated that he would bet his paycheck that he [the applicant] would get a medical discharge.  The applicant was sent to another office where he was told that "he wasn't passing out any medical discharges today and the only thing he could do was give him an honorable discharge."

10.  Department of the Army message, dated 011510Z August 1973, provided the standards and criteria for the evaluation and discharge of enlistees before 180 active duty days.  The Trainee Discharge Program was implemented effective 1 September 1973 pending the revision of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  It was designed to enable commanders to expeditiously discharge the individual who lacked the necessary motivation, discipline, ability, or aptitude to become a productive Soldier when the individual:

   a.  Voluntarily enlisted in the Regular Army, the Army National Guard or the U.S. Army Reserve.

   b.  Was in basic training, MOS training, or advanced individual training; in a service school; in units or on-job-training prior to the award of an MOS; or would have completed no more than 179 days of active duty by the date of discharge, whichever occurred earlier.

   c.  Had demonstrated that he or she was not qualified for retention for one or more of the following reasons.  The individual:  

   (1)  Could not or would not adapt socially or emotionally to military life;

   (2)  Could not meet the minimum standards prescribed for successful completion of training because of a lack of aptitude, ability, or motivation; and

   (3)  Did not meet the moral, mental, or physical standards for enlistment including disqualifying drug use in accordance with Army Regulation 601-210 (Active and Reserve Components Enlistment Program).

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) 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.  

	a.  Paragraph 2-1 provides that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

	b.  Paragraph 2-2b(2) states that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty.

12.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Chapter 3 gives the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individual in paragraph 3-2, below.  These medical conditions and physical defects, individually or in combination:

   a.  Significantly limit or interfere with the Soldier's performance of duties.

   b.  May compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military; this may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatment, or a requirement for frequent clinical monitoring.
   
   c.  May compromise the health or well-being of other Soldiers.
   
   d.  May prejudice the best interests of the government if the individuals were to remain in the military service.

13.  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 percent.  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 percent.

14.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish an error or injustice on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties.  Unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his DD Form 214 to show he received a medical discharge has been carefully considered and found to be without merit.

2.  The purpose of the PDES is to maintain an effective and fit military organization with the maximum use of available manpower, provide benefits for eligible Soldiers whose military service is terminated because of a service-connected disability, and provide prompt disability processing while ensuring the rights and interests of the Army and the Soldier are protected.

3.  He now believes he should have received a medical discharge for a cyst on his back which caused him to go on sick call for cramps.  There is no evidence in the available records and the applicant did not provide sufficient evidence which shows he was diagnosed with a medical condition which would have warranted his entry into the PDES.  He was offered a separation physical but declined to take one.

4.  The PDES provides that the mere presence of a medical impairment does not, in and of itself, justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of a physical disability present with the requirements of the duties the Soldier may be reasonably expected to perform based on the Soldiers office, grade, rank, or rating.

5.  Based on the available evidence it appears the applicant was properly discharged from the U.S. Army in accordance with Department of the Army message, dated 011510Z August 1973, under the trainee discharge program.    In view of the foregoing he is not entitled to 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 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)                                         AR20120022468



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ABCMR Record of Proceedings (cont)                                         AR20120022468



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