IN THE CASE OF:	  

		BOARD DATE:	    22 May 2014

		DOCKET NUMBER:  AR20130015912 


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, a medical discharge.

2.  The applicant states he entered into the military service in Puerto Rico (PR) in good health.  He became mentally ill and was honorably discharged.  After his separation, the Department of Veterans Affairs (VA) rated him 100 percent service-connected disabled based on his military hospital records.  He should have been sent to a medical board and a granted a medical discharge.

3.  The applicant provides copies of a requestor information sheet, three VA Forms 21-4138 (Statement in Support of Claim), and three letters from the National Personnel Records Centers (NPRC).

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 U.S. Army Reserve, in pay grade E-1, on 2 August 1976.  He was ordered to active duty for training (ADT) and entered ADT on 24 October 1976 at Fort Dix, NJ.  

3.  On 5 November 1976, he accepted nonjudicial punishment under Article 15 for wrongfully urinating behind the telephone booths in the barracks.  

4.  A U.S. Army Training and Doctrine Command Form 871-R (Trainee Discharge Program (TDP), dated 13 December 1976, shows he received counseling for major difficulties stemming from his lack of understanding or speaking conversational English and his distinct lack of motivation and self-discipline.  It was noted an interpreter was used to communicate with him and he stated he understood, but continued slow actions and low standards.  

5.  In a rebuttal statement, dated 13 December 1976, the applicant stated that if he were given another chance he could adapt to the military way of life and become a better Soldier in contrast to his past.  He had been receiving therapy in the hospital for his feet and arm.  He would also make an effort to learn the English language.

6.  On 10 November 1976, the Basic Combat Training (BCT) company commander notified the applicant of the proposed action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 5-39.  The company commander stated the reasons for the proposed action were:  the applicant could not meet the minimum standards prescribed for successful completion of training because of a lack of motivation and self-discipline.  That was evidenced by the applicant's continual laziness and failure to respond, even though his drill sergeant had shown extreme patience in dealing with the applicant's language difficulty.  He advised the applicant of his rights.

7.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 23 November 1976, shows he was admitted to the hospital on 7 November 1976 after falling on stairs in the company barracks and hitting his head, arm, and ribs.

8.  On 12 December 1976, the applicant acknowledged receipt of the proposed separation.  He waived his right to counsel and elected to submit a statement in his own behalf.    

9.  His Standard Forms 88 (Report of Medical Examination) and 93 (Report of Medical History), both dated 16 December 1976, show he underwent a medical examination for the purpose of separation.  The form contained no documentation/record of any mental illness during his period of service and he was medically cleared for separation.  On the SF 93 he stated that he was in fair health.

10.  In his statement, dated 14 January 1977, the applicant stated he wanted to stay in the service because there were no good jobs in Puerto Rico and he wanted to get a good job in the service.  

11.  In a rebuttal, dated 21 January 1977, the Commander, BCT Program, stated:

   a.  The applicant's case was somewhat unusual since the applicant had been at Fort Dix since October and had only completed one week of training.  The applicant fractured his right forearm after one week of training and was admitted to the hospital where he spent four weeks in the ward and two weeks in medical hold taking physical therapy.  He was released on 15 December in time to go home on Christmas leave.

   b.  The applicant had been identified by the cadre as early as 31 October because of his inability to speak English.  He was also given an Article 15 for failure to make formation and being caught urinating in a phone booth inside the barracks and he had constantly been counseled for his uniform violations.

   c.  His initial interview had to be terminated until he could obtain an interpreter because the applicant spoke very little English.  During the second interview, the applicant confirmed the foregoing facts.  The applicant did not feel he had been treated fairly.  His major complaint was that he had been given too many things to do around the company and not enough time to complete them.  Despite the fact he had more than his share of problems the applicant wanted to remain in the service and felt he could adapt.  He personally felt the applicant's major concern was a job at that time.  He recommended the applicant be discharged.

12.  On 24 January 1977, the separation authority approved the applicant’s discharge.

13.  Accordingly, he was honorably discharged on 1 February 1977 by reason of marginal or non-productive performance – Trainee Discharge Program (TDP).  He was credited with completing 3 months and 8 days of net active service with no time lost.

14.  He provided copies of three letters each from the VA and NPRC, dated between November 2012 and August 2013, all which pertain to his request for his correction of his military records.

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Paragraph 5-39 provided for the separation of personnel under the TDP.  It provided for their separation prior to award of a military occupational specialty with less than 180 total days of creditable military service for one of the following reasons:  failure to adept, inability to meet training standards, or character and behavioral characteristics that were not compatible with continued service.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, set forth policies, responsibilities, and procedures that apply in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  The regulation stated in the mere presences of an impairment did not, of itself, justify a finding of unfitness because of physical disability.  In each case, it was necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably could be expected to perform because of their office, grade, rank, or rating.  The objectives of standards was to ensure all Soldiers were physically qualified to perform their duties in a reasonable manner, medical retention qualification standards had been established in Army Regulation 40–501 (Standards of Medical Fitness), chapter 3.  Those standards included guidelines for applying them to fitness decisions in individual cases.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows during the period of the applicant's ADT he received counseling for major difficulties stemming from his lack of understanding or speaking conversational English,  his distinct lack of motivation and self-discipline, and he was twice punished under Article 15.  The BCT company commander initiated action to separate him under the TDP.  The separation authority approved his discharge and he was discharged accordingly.

2.  He provided no evidence or a convincing argument to show he was suffering from any mental illness during his period of active duty and he should have been seen by a medical board and medically discharge.  In fact, he requested retention in the Army.  The evidence shows his potential for continued effective service fell below the standards required for enlisted personnel in the U.S. Army. His military records also contain no evidence which would entitle him to a medical discharge.



3.  The evidence confirms his separation was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Therefore, he is not entitled to a medical discharge.

4.  His contention of his award of a VA rating decision was carefully considered; however, the award of a VA rating does not establish entitlement to a medical discharge and/or medical retirement.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service (service connected).  As the case may be, he was evaluated by the VA and being compensated for his service-connected medical condition by the VA; however, there is no indication he suffered a disabling condition while in a qualifying duty status that would have supported his processing for a medical discharge through medical channels.

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)                                         AR20130015912





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ABCMR Record of Proceedings (cont)                                         AR20130015912



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