IN THE CASE OF:	   

		BOARD DATE:	  19 August 2014

		DOCKET NUMBER:  AR20130020009 


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 for his discharge be changed to show he was discharged due to medical reasons.

2.  The applicant states that he planned to serve for 25 years or more but he had an accident on active duty and he has been dealing with this problem for 
36 years.  He has been told that there is no evidence of him being injured or that he did not serve long enough.  He suffers from depression and stress because he was not able to finish something that he wanted so badly.  If he had a chance to start all over he would, but now his life is harder than anyone could imagine.

3.  The applicant provides a copy of his Board of Veterans' Appeals claim, dated 
27 February 2012.

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 available records show he enlisted in the U.S. Army Reserve (USAR), on 2 September 1975, and entered active duty for training on 27 November 1975.  He was assigned to Company E, 5th Battalion, 3rd Basic Combat Training Brigade, U.S. Army Training Center, Fort Dix, NJ.

3.  His record shows that:

	a.  On 13 January 1976, the applicant was notified by his immediate commander of his possible discharge from the U.S. Army under the provisions of Department of the Army (DA) message 011510Z, dated August 1973, Subject: Evaluation and Discharge of Enlistees before 180 Active Duty Days.  His commander specifically noted the applicant's negative attitude toward any type of military training and his daily attendance at sick call.

	b.  On 14 January 1976, the applicant's immediate commander notified the applicant of his intent to initiate separation action in accordance with the message listed above.  He specifically stated that the applicant was not physically or mentally capable of completing Basic Combat Training (BCT).  During the first 3 weeks of BCT the applicant attended sick call eleven times and had been hospitalized twice.  The applicant was not a motivated Soldier.  The applicant's specific injury or illness was not identified.

	c.  The applicant acknowledged receipt of the separation notification memorandum and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  He declined representation by counsel and a separation medical examination.  In his written statement submitted during his separation processing the applicant indicated that he wanted to get out of the Army.  If he could not get a medical discharge based on his physical and mental inability to cope, then he just wanted assistance from his drill sergeant to get out.

3.  On 16 January 1976, the separation authority approved his discharge under the provisions of DA message 011510Z, dated August 1973.

4.  He was accordingly discharged on 20 January 1976.  He completed 1 month and 24 days of creditable active service.  The narrative reason for discharge was "Miscellaneous-General (Trainee Discharge Program (TDP)).

5.  There are no accompanying service medical/treatment records or other documentation that show he suffered an accident while on active duty.  Additionally, his records do not indicate that he suffered from an injury, illness, or any medical condition that would have warranted his entry into the Army's Physical Disability Evaluation System (PDES).

6.  The applicant provides his Board of Veterans' Appeal, Waco, TX, wherein he highlighted the following entry:

	"There is no basis to question the credibility of the Veteran's statements.  His service treatment records clearly document that he injured his back in the line of duty during active duty for training on 4 December 1975, when he fell while on kitchen patrol, and was thereafter treated in service for back strain.  He initially filed a claim for service connection for his low back condition on 27 January 1976, only one week after his service discharge.  He filed again for service connection for a low back condition in March 1982, November 1994, and February 2007.  Throughout the record, the Veteran has consistently reported the same low back pain has been ongoing since service through the present time, and that in the past he could only treat this pain with over-the-counter medications.  His private treatment provider opined in September 2007 and October 2008 that the Veteran's current low back condition could be attributed to his in-service back injury.  The applicant was granted service connection for foraminal stenosis, degeneration of lumbar spine with radiculopathy, and bilateral sacroiliitis.

7.  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.

8.  Army Regulation 635-40, in effect at the time, set forth policies, responsibilities, and procedures 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.  Paragraph 2-1 (Standards of unfitness by reason of physical disability) of this regulation, provided that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case considered, it is necessary to correlate the nature and degree of physical disability which is present with the requirements of the duties which the member reasonably may be expected to perform by virtue of his office, grade, rank, or rating.

9.  Title 38, U.S. Code, sections 1110 and 1131, permit the Department of Veterans Affairs (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 error or injustice on the part of the Army.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests, almost 40 years later, his narrative reason for discharge be changed to show he was discharged due to medical reasons.

2.  Based on evidence provided by the applicant and confirmed by VA examiners, he suffered a lower back injury when he fell while performing kitchen patrol and that he sought medical treatment on numerous occasions during his brief period of service for this injury.  It is clear that the pain he experienced coupled with his overwhelming mental stress were contributing factors in his inability to continue training.

3.  However, the mere presence of an injury/illness does not render the applicant unfit or warrant entry into the PDES.  By his own statement, he wanted to get out of the Army even if he could not get a medical discharge.  Accordingly, the applicant's chain of command initiated separation action against him.  In the absence of any medical evidence to the contrary, administrative regularity is presumed in the applicant's separation process.

4.  The applicant should note that an award of a VA rating for a service connected injury/illness does not establish entitlement to medical retirement or separation.  The VA operates under its own policies and regulations and provides compensation when a medical condition is determined to be service connected.  Furthermore, the VA can evaluate a veteran over his or her lifetime, adjusting the percentage of disability based upon the agency's examinations and findings.

5.  The evidence of record and independent evidence submitted by the applicant fail to show any error or injustice.  As such, 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 have jeopardized his rights.

6.  In lieu of the above, his request should be denied.

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)                                         AR20130020009



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ABCMR Record of Proceedings (cont)                                         AR20130020009



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