IN THE CASE OF:	   

		BOARD DATE:	  12 June 2014

		DOCKET NUMBER:  AR20130015966 


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, the narrative reason and separation program designator (SPD) code shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to reflect that he was discharged for medical reasons so he can receive medical benefits.

2.  The applicant states the situation regarding his discharge focused on his inability to perform his duties due to the pain in his groin as a result of a preexisting surgery he underwent when he was 7 years-old.  The documents fail to mention the fact that the primary reason for his inability to perform his duties was the fracture to his right hip.  While it is true that his groin was injured again by the fall, the Army chose only to focus on the groin as the reason and discharged him under the 120-day rule.  This injury has persisted throughout his life and caused him to lose jobs.  He is currently appealing a decision by the Department of Veterans Affairs (VA) to deny his claim.  He further states that the hip injury has led to other medical problems.  He suffers from lower back pain and neuropathy which cause him to walk with a limp.  He cannot maintain a job.  He filed for compensation and medical care through the VA and has been denied twice.

3.  The applicant provides (and his record contains):

* DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States)
* DA Form 2-1 (Personnel Qualification Record - Part II)
* DA Form 4856 (General Counseling Form)
* Standard Form (SF) 600 (Health Record - Chronological Record of Medical Care)
* Separation packet
* DD Form 214

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 military personnel records show he enlisted in the Regular Army on 21 June 1982.

3.  The applicant's DA Form 4856 shows that on:

* 25 June, he was welcomed to his unit and received initial counseling
* 28 June, he went on sick call following an accident (injury) in the dining facility while on Kitchen Police (KP) duty; it was diagnosed as a possible pulled muscle
* 29 June, he was excused from training and placed in "C&D" (Casual and Detail) status and prescribed physical therapy for 72 hours
* 6 July, he went on sick call regarding pain in his back and was returned to duty
* 7 July, he went on sick call for a hernia evaluation:

* an SF 600 shows he underwent bilateral hernia repair surgery at the age of 3 and his left testicle was surgically removed at the age of 7
* Medical personnel recommended possible separation under the Trainee Discharge Program (TDP) after determining he had no medical problem

* 8 July, he went on sick call for pain in his groin.  He was advised that he must continue training or be separated under the TDP
* 9 July, he went on sick call.  Medical personnel recommended separation under the TDP without undergoing a medical board
* 9 July, medical personnel requested "no more visits in reference to this problem"
* 30 July, he went on sick call which resulted in being placed in C&D status for 24 hours
* 5 August, he went on sick call for pain in his right foot and leg which resulted in being restricted from running and 5 days of physical therapy
* 10 August, he underwent a medical reevaluation which resulted in being restricted from running for 1 week
* 14 August, he was placed in C&D status for 24 hours
* 16 August, he went on sick call for diarrhea and was returned to duty
* 17 August, he underwent a medical reevaluation which resulted in 3 days of physical therapy and being placed in C&D status for 72 hours

4.  This same document shows:

	a.  The applicant's drill sergeant noted that medical personnel had informed the applicant that there was nothing they could do about his condition and that he would have some discomfort.  He was also advised that if he did not start training, TDP action could be taken.  The applicant stated that he could not and would not train because of the pain he was suffering.  It was noted that the applicant had been missing one testicle since he was 7 years old and since he had entered the Army, he was in constant pain.  The applicant stated that if he was recycled, he would still not train and would still go on sick call every time he experienced this pain.  The applicant's drill sergeant recommended that he be separated under the TDP.

	b.  The applicant's unit commander interviewed him reference elimination from the military.  The applicant stated he still experienced pain in his groin, which required microscopic surgery that the Army would not do.  The applicant stated that he desired separation from the military.  He said it was difficult, if not impossible, to train with the pain that he was experiencing.  The commander concurred with the recommendation for his elimination under the provisions of the TDP and requested waiver of further counseling.  The applicant concurred with the counseling statement on 18 August 1982 and authenticated the document with his signature.

5.  On 21 August 1982, the applicant's commander notified him he was initiating action to discharge him from the U.S. Army under the provisions of paragraph 
5-33 (TDP), Army Regulation 635-200 (Personnel Separations).  The specific reason given by the commander was the applicant's inability to meet the minimum standards prescribed for successful completion of training because of a lack of motivation and self-discipline.  He advised the applicant that the final decision in his case rested with the separation authority and if his separation was approved, his service would be characterized as honorable.  However, if he did not have sufficient prior military service, he should understand that due to noncompletion of requisite active duty time, VA and other benefits normally associated with completion of honorable active duty service would be affected.  The commander advised the applicant of his right to submit a rebuttal or any statements in his behalf and to have a separation physical if he felt his physical condition had changed since his last examination or to waive these rights.

6.  On 21 August 1982, the applicant acknowledged the notification of his proposed discharge and stated that he:

* did not desire to have a counsel assist him in explaining the separation procedures or in making statements or rebuttals on his behalf
* did not desire to make a statement or submit a rebuttal in his behalf
* did not wish to have a separation physical examination if this separation was approved

7.  On 24 August 1982, the applicant's unit commander recommended him for discharge.  The commander stated that the applicant required microscopic surgery which the Army would not perform.  He was unwilling to train due to the pain in his groin and lacked the motivation to successfully complete training.

8.  On 27 August 1982, the applicant's battalion commander concurred with the recommendations of the unit commander.  He stated the applicant had been on numerous medical profiles which had precluded him from training.  The applicant had a unique medical condition causing a nominal amount of discomfort to him while training.  The applicant had stated that he could not and would not train because of the pain he was experiencing.  Due to the fact that the condition existed prior to his entry into the military, the Army would not perform the necessary surgery to remedy this problem.  Further, retention of the applicant was not feasible.  As a result, the battalion commander recommended that the applicant be discharged under the provisions of the TDP.

9.  On 30 August 1982, the appropriate authority approved the applicant's discharge under the TDP and directed that he be furnished an Honorable Discharge Certificate.

10.  On 1 September 1982, the applicant was discharged.  He had completed 2 months and 11 days of active service that was characterized as honorable.  The authority for his discharge was paragraph 5-33f(2) of Army Regulation 635-200.  He was assigned the SPD code of JET.
11.  Army Regulation 635-5-1 (SPD Codes), then in effect, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation showed that the SPD code JET, as shown on the applicant's DD Form 214, specified the narrative reason for discharge as "marginal or non-productive performance (Trainee Discharge Program)" and that the authority for discharge under this SPD code was paragraph 5-33 of Army Regulation 635-200.

12.  Army Regulation 635-200, in effect at the time, provided for the TDP.  This program provided for the separation of service members who lacked the necessary motivation, discipline, ability or aptitude to become productive Soldiers or failed to respond to formal counseling.  The regulation essentially required that the service member must have voluntarily enlisted; must be in basic, advanced individual, on-the-job, or service school training prior to award of a military occupational specialty; and must not have completed more than 179 days of active service on his or her current enlistment by the date of separation.  The regulation provided that Soldiers may be separated when they have demonstrated that they are not qualified for retention due to failure to adapt socially or emotionally to military life; cannot meet minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline; or have demonstrated character and behavior characteristics not compatible with satisfactory continued service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that the narrative reason and SPD code on his DD Form 214 be changed to reflect a positive situation so he can receive veterans' benefits was carefully considered.

2.  Evidence shows that the applicant had a preexisting medical condition prior to his entry into the military.  Although he underwent bilateral hernia repair surgery at the age of 3 and surgical removal of his left testicle at the age of 7, he still had difficulty meeting the physical demands of military training without suffering significant pain in his groin.

3.  Although the applicant sought medical treatment for numerous issues during his brief period of service, to include back pain, it is apparent that the pain in his groin was the most significant condition and the catalyst for his inability to continue training.

4.  Although the applicant now contends that it was in fact his back pain which prevented him from training, there is no evidence in his record and he has failed to provide sufficient evidence to support that claim.  Prior to discharge, he was afforded opportunities to comment on or rebut the reason for his pending separation.  He concurred with the counseling statement rendered by his drill sergeant and unit commander and subsequently declined his right to submit a statement or rebuttal on his own behalf during the discharge process.

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

6.  The ABCMR does not change records solely for the purpose of establishing eligibility for benefits from another agency.

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)                                         AR20130015966





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ABCMR Record of Proceedings (cont)                                         AR20130015966



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