IN THE CASE OF:	  

		BOARD DATE:  14 November 2013

		DOCKET NUMBER:  AR20130006127 


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 was discharged due to medical reasons.

2.  The applicant states he was healthy and well when he entered the Army, but he was injured during military service.  His injury was of such a severity that it required him to be discharged.

3.  The applicant provides:

* DD Form 214, dated 2 September 1975
* DD Form 689 (Individual Sick Slip), dated 20 August 1975 and 28 August 1975
* Army Review Boards Agency letter, dated 18 March 2013
* Yuba/Sutter Veterans Service Office Transmittal Letter, dated 21 March 2013

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 (RA) on 8 August 1975.

3.  On 17 August 1975, the applicant was notified that he was being recommended for discharge under the provisions of Department of the Army (DA) Message Date Time Group (DTG) 811510Z August 1973, subject:  Evaluation and Discharge of Enlistees before 180 Active Duty Days.  In the notification he was advised of his demonstrated deficiencies in the following areas:

	a.  Attitude – Failure to demonstrate an acceptable attitude toward the military service, basic training, and the U.S. Army.  He constantly reported to the unit first sergeant indicating he had no interest in military service.  He also mentioned that the Army recruiter did not explain to him that he must go through basic training before he was able to work in the military occupational specialty for which he enlisted.  His attitude was so weak that he told his drill sergeant he will never be able to execute movements of the drill and ceremony training.  He also stated that he joined the Army to be a truck driver and not to master the Army drill and ceremony training.

	b.  Motivation – Lack of motivation toward further military service because he believed he could never follow orders as long as he was away from his family.  Further, he stated he could not adapt himself to military training because his mind was at home and not with soldiering and the U.S. Army.

	c.  Self-discipline – Failure to follow orders and instructions from his drill sergeants.  He stated he was 27 years old and that he knew what he wanted, which was out of the U.S. Army the quickest way possible.  He failed to respond to all available counseling from drill sergeants and the unit first sergeant.

4.  The notification also indicated the applicant had been previously counseled by his drill sergeant and first sergeant for lack of attitude/self-discipline and lack of attitude/motivation, respectively.

5.  On 18 August 1975, the applicant acknowledged receipt of the notification wherein he indicated:

	a.  he did not desire to have a counsel assist him in explaining the discharge procedures or in making statements or rebuttals in his behalf.

	b.  he did not desire to have a separation medical examination if his discharge is approved.

	c.  he did not desire to make statements or submit a rebuttal in his own behalf.

6.  On 20 August 1975, his battalion commander recommended approval of the separation action with an honorable discharge.

7.  His record contains a DA Form 3082 (Statement of Medical Conditions), dated 2 September 1975, that shows his last separation examination was conducted at the time of his enlistment on 8 August 1975 by the medical treatment facility at the Armed Forces Entrance and Examination Station at Oakland, CA.  By signature, he states "to the best of my knowledge, since my last separation examination there has been no change in my medical condition."

8.  On 2 September 1975, the applicant was honorably discharged under the provisions of DA Message 011510Z August 1973.  He was assigned a separation program designator (SPD) code of JNF, that indicates he was discharged by reason of "Miscellaneous-General (Trainee Discharge Program).  He completed 25 days of total active service.

9.  The applicant provides DD Forms 689 that show while he was in the Army he was seen by medical personnel for foot and back pain.  There is no evidence in the available record that shows he was suffering from any condition during his service that would have required him to be processed through medical channels.

10.  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; or possessing a character and behavior disorder not compatible with continued service.  Members separated under these provisions received an honorable discharge.

11.  Army Regulation 635-40 (Personnel Separation – Physical Evaluation for Retention, Retirement, or Separation) provides that when a member is being 

separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and his supporting evidence has been considered.

2.  Medical documents provided by the applicant show he was seen by medical personnel twice while in the Army for foot and back pain.  He provides no evidence, nor is there any evidence of record, that shows he was suffering from any condition while he was in the Army that would have required him to be processed through medical channels.

3.  The available evidence shows he was discharged under the Trainee Discharge Program based on his inability to adapt to military life; failure to meet training standards; failure to meet moral, mental, or physical standards; or possessing the required character and behavior compatible with continued military service.

4.   The applicant has failed to show error or injustice in the authority and reason for his discharge.

5.  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)                                         AR20130006127



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ABCMR Record of Proceedings (cont)                                         AR20130006127



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