IN THE CASE OF:	  

		BOARD DATE:	  31 December 2013

		DOCKET NUMBER:  AR20130006438 


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, in effect, correction of his DD Form 214 (Report of Separation from Active Duty) to show the reason for his separation was due to medical circumstances.  He further requests to appear before the Board.

2.  The applicant states he only recently learned his discharge from the Army was "less than honorable."  He states he was injured in a training exercise while awaiting transfer orders for advanced individual training.  While on the firing range as a left-handed shooter after graduating from basic combat training, the brass deflector failed on his automatic rifle which subsequently caused a severe eye injury.  The attending physicians at Fort Knox, KY, felt he was no longer physically capable of fulfilling his combat military occupational specialty and thereby made the decision that he would be discharged due to medical circumstances.  His visual acuity was 20/20 with eyeglasses at enlistment.  Years prior to his enlistment while installing a window pane, the glass shattered resulting in a corneal abrasion of the same eye, which healed promptly.  He is in the process of securing both past and present medical documents which support the facts presented.  These will be made available for examination by the Board if a formal hearing is deemed necessary to rectify the error.  He emphasizes that the injury occurred after he satisfied the requirements for basic training and had graduated.

3.  The applicant provides no additional evidence.



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.  On 18 May 1976, the applicant enlisted in the Regular Army.  

3.  His military records contain a Training and Doctrine Command Form 871-R (Trainee Discharge Program (TDP) Counseling), dated 8 July 1976.  This form shows he complained about his vision on 7 July 1976, especially during basic rifle marksmanship.  It further shows he was referred to sick call under the TDP and he was issued a physical profile indicating he was unqualified for enlistment.

4.  A DA Form 3349 (Physical Profile), dated 8 July 1976, stated he had a constricted visual field, probably secondary to topical drug application, oculus dexter, existing prior to service (EPTS).  It provided that he was not medically qualified for enlistment and that he was unfit under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), paragraph 2-12i(8).  His training was to be suspended pending his separation under the TDP.

5.  On 9 July 1976, the applicant's commander notified him that he was initiating action to discharge him from the U.S. Army due to not meeting the physical standards for enlistment.  He stated the applicant's medical problem of constricted visual field would hinder his performance during training.

6.  On 12 July 1976, the applicant consulted with counsel who advised him of the reasons for his separation and the rights available to him.  He acknowledged with his signature that he received the notification of his proposed honorable discharge.  He chose not to submit a rebuttal or statement on his own behalf and he indicated he did not desire to have a separation medical examination if his discharge was approved.  He also indicated he understood that due to non-completion of requisite active duty time, Veterans Administration and other benefits normally associated with completion of honorable active duty service would be affected.  He waived his rights.
7.  His medical records are not available for review.  However, on 13 July 1976 an intermediate commander recommended the applicant's discharge because he was unable to satisfactorily complete basic combat training requirements due to an EPTS medical condition.

8.  His records show his TDP case had been reviewed and an honorable discharge was approved by the appropriate authority on 13 July 1976 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-39.

9.  On 26 July 1976 in accordance with the separation authority's decision, he was honorably discharged from active duty after completing 2 months of creditable active service with 9 days of lost time.  His DD Form 214 shows in:

* item 9c (Authority and Reason) – "X X X X"
* item 9e (Character of Service) – "HONORABLE"
* item 27 (Remarks) –

* "9 days lost under Title 10 USC 972:  18-26 Jul 76"
* "Miscellaneous-General (Trainee Discharge Program)"
* "SPD JNF Para 5-39 AR 635-200"
* "RE-3 & 3B"

10.  Army Regulation 40-501 (Standards of Medical Fitness) provides medical fitness standards for candidates for military service or persons in the military service in terms of medical conditions and physical defects which are causes for rejection or medical unfitness for military duty.  Paragraph 2-12i(8) provides that a loss of visual fields in the eyes due to organic disease is cause for rejection for enlistment.

11.  Headquarters, Department of the Army, message, DAPC-MPE, dated 1 August 1973, subject:  Evaluation and Discharge of Enlistees Before 180 Active Duty Days (TDP), provided the authority for discharge of enlisted personnel from the U.S. Army prior to the completion of their training for one (or more) of the following reasons:  could/would not adapt; could not meet training standards; did not meet moral, mental, or physical standards; or character and behavior disorders.  An honorable discharge was authorized for members separating under this provision.

12.  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.  The version in effect at the time prescribed SPD code JNF as the appropriate code to assign to enlisted Soldiers discharged under the provisions of Headquarters, Department of the Army, message, DAPC-MPE, dated 1 August 1973, subject:  Evaluation and Discharge of Enlistees Before 180 Active Duty Days (TDP).

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted; however, there is no evidence beyond his personal statement to support his contentions.

2.  The evidence of record shows he was determined to have a constricted visual field, probably secondary to topical drug application which was EPTS.  Therefore, he was unqualified for enlistment.  There is no evidence he incurred an injury or other medical conditions during his military service which would have warranted a medical discharge.  His records contain no indication of procedural or other errors that would have jeopardized his rights.

3.  He was issued an SPD code of JNF which denotes that he was discharged under the TDP.  All individuals separated from the service are issued an SPD code that corresponds to the reason for separation.

4.  His request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

5.  Based on the foregoing, there is no basis for granting 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 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)                                         AR20130006438



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ABCMR Record of Proceedings (cont)                                         AR20130006438



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