IN THE CASE OF

		BOARD DATE:  7 August 2014

		DOCKET NUMBER:  AR20130021552 


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 his uncharacterized discharge be upgraded to honorable.

2.  The applicant states that, in effect:

	a.  On 20 May 1993, he was injured when he stepped into a hole and fell while running downhill during training.  He landed on his chest and chin, and his feet scorpion-tailed around so that his heels hit his forehead.  He was hurt, but he tried to shake it off, got back up, and continued running. 

	b.  The next day, he had pain and numbness in his left foot.  He was put on profile for the injury.  Later, when the pain switched to both his feet and his back, he realized that his spine must have been injured and not his legs.  His drill sergeants interpreted this to mean that he was faking his injury and unable to keep his story straight.  The pain and numbness increased daily as did the pressure from the drill sergeants.

	c.  While on profile he was doing paperwork at a desk in the first sergeant's office and a drill sergeant came in.  He addressed the drill sergeant but he did not stand because he was having difficulty standing.  The drill sergeant became livid, started yelling, and ordered him to stand at attention.  The position of the desk forced him to face the wall as he stood.  The moment he stood at attention a baseball bat struck the wall an inch above his head, before he could turn around.  This is the type of pressure he is referring to. 

	d.  On 28 May 1993, he was admitted to the base hospital for a low back sprain and released on 31 May 1993.  He asked, and was denied, any tests to determine soft tissue damage.  However, the 31 May 1993 Hospital Discharge Summary states that if his symptoms persist, he may require a computerized tomography (CT) scan.  He was given a profile for 72 hours and bed rest.  

	e.  On 3 June 1993, when his bed rest expired, he was ordered to the mess hall for breakfast.  He had a difficult time getting there because of the pain and he had difficulty standing up straight.  While there, he fell down because his legs were weak.  His drill sergeant and other drill sergeants who were in the hallway circled him.  They began yelling at him and degrading him for faking his injury and pain, for insubordination (disobeying an order to get up), for having a bad attitude, and other things.  He got out of the mess hall by half-hobbling and half-crawling a mile to the troop medical clinic.  Despite what the doctor put in his records no one helped him get there.  The 3 June 1993 doctor's report shows he “refused,” as opposed to being unable, to straighten up.  The spasms, pain, and numbness were getting to be intolerable; however, the doctor also claimed he was faking it, and pushed him out of the chair in an attempt to prove it.  The doctor prescribed Motrin, Robaxin, and physical therapy (PT).

	f.  He went from there to physical therapy, where he spoke with the physical therapist.  He was in a troubled state of mind from his level of physical pain and mental distress about how it was being handled.  He told the physical therapist of his situation and that if he was forced to go back to his unit he might start shooting someone. 

	g.  At that time he was admitted to the psychiatric ward.  He continued to receive the Motrin, Robaxin, and PT regimen while in the psychiatric ward, as well as counseling.  Despite the fact that his symptoms had persisted and in fact were exacerbated, his request for a CT scan and/or magnetic resonance imaging was denied.  When he persisted in his request, he was threatened that if he did not stop asking for the tests he would be returned to his unit.

	h.  For several weeks, he had difficulty walking, but by the end of July 1993 his back had recovered enough that he could walk normally with very little pain. He was offered an entry level separation and nothing else.  He knew that there was little he could do at that point.  In the separation request the commanding officer wrote, “Soldier has claimed to have injured his back, however doctors believe the problem is more mental than physical.”  The only type of testing done while he was in basic training was blood work and an X-ray, which could not determine soft tissue damage.  No effort was taken while he was in the military to determine if he was truly injured.  It was assumed from the start that he was not.
	i.  After he was discharged, he was temporarily homeless.  He was unable to afford medical care and he took on the odd jobs he could.  However, he could not hold down those jobs at the time.  His back pain would flare up and he would be off his feet for days at a time.  A friend was able to help him get to the Department of Veterans Affairs (VA) hospital during a particularly bad flare up, where he applied for VA benefits.  He was awarded 10% service connected disability rating for lumbosacral strain/sprain for the injury he received during basic training.

	j.  He assumed his DD Form 214 (Certificate of Release or Discharge from Active Duty) would be corrected as the disability award paperwork advised about the benefits available to disabled veterans, and he did not pursue the issue.  He would have been able to use other benefits without having any problems.  In 2011, his family decided to purchase a home using the VA Home Loan benefit available to disabled veterans.  However, due to his discharge status he was denied.  

3.  The applicant provides copies of his:

* Medical records for the period 22 May through 3 June 1993
* DA Form 3822-R (Report of Mental Status Evaluation), dated 8 July 1993
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 9 July 1993
* Memorandum listing dates and subjects of counselings, dated 9 July 1993
* separation medical examination records
* commander's memorandum recommending the applicant's separation
* DD Form 214
* post-service VA medical examination records
* VA rating decision, dated 15 July 1994

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 on 12 May 1993.  He did not complete training and was not awarded a military occupational specialty.

3.  The medical records he provided show:

	a.  He was seen on 27 May 1993 for back pain;

	b.  A DA Form 4700 (Medical Record - Supplemental Medical Data) shows he was admitted to Martin Army Community Hospital (MACH) on 28 May 1993 and discharged on 31 May 1993.  He was treated for low back pain.  He was prescribed medication and referred for PT.

	c.  A 3 June 1993, Medical Record Consultation Sheet shows he was seen in PT for non-radiating low back pain.  The therapy "Goal: is shown as normal gait in 1-2 weeks."

	d.  A mental status evaluation dated 8 July 1993 shows:

		(1)  Diagnosis:  Adjustment Disorder with Depressed Mood. 

		(2)  Findings:  The applicant met the retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  There was no psychiatric disease or defect which warranted disposition through medical channels.  The applicant was mentally responsible, able to distinguish right from wrong and adhere to the right.  He had the mental capacity to understand and participate in board proceedings.  The disorder was so severe that the applicant's ability to function effectively in the military environment was significantly impaired.  He was psychiatrically cleared for any administrative action deemed appropriate by his chain of command.

		(3)  Recommendation:  It was in the best interest of the applicant and the Army for him to be expeditiously separated from active duty.

	e.  A DA Form 2173, dated 9 July 1993, shows he received a low back strain injury on 28 May 1993 while doing physical training.  He was put on a 3-day 

upper body profile and given Motrin.  On 28 May 1993, while undergoing training he indicated he was experiencing severe back pain.  He was taken to MACH.

	f.  A 9 July 1993 memorandum from his commander shows he was counseled on 8 occasions between 22 May and 9 June 1993 for missing training due to sick call and performance issues, and because he was being considered for separation.

	g.  A 15 July 1993 Report of Medical History shows he injured his back in 1993, had insomnia and depression.  A Report of Medical Examination shows he was qualified for separation with no abnormalities listed. 

4.  On 9 July 1993, the applicant's immediate commander notified him of his intent to initiate separation action under the provisions of Army Regulation 
635-200 (Personnel Separations), chapter 11, Entry Level Status.  The specific reasons for the proposed action were that the applicant would not or could not physically or emotionally adapt to military life.  He claimed to have injured his back; however, doctors believed the problem was more mental than physical.  He was further advised that if the request for separation was approved he would receive an entry level status character of service and that due to non-completion of his enlistment/active time, VA and other benefits would be affected.

5.  The applicant acknowledged receipt of the separation notification action.  He did not waive his right to a separation medical examination, but declined to consult with counsel and elected not to submit a written statement in his own behalf.

6.  The separation authority approved the recommendation for discharge, and on 5 August 1993 he was so discharged.  He had completed 2 months and 2 days of creditable active service.  His DD Form 214 shows his service was uncharacterized. 

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   a.  Chapter 11 provides for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry level status.  This provision of regulation applies to individuals who were in an entry level status and, before the date of the initiation of separation action, completed no more than 180 days of continuous active duty.  It further applied to individuals who had demonstrated they 

were not qualified for retention because they could not adapt socially or emotionally to military life, or because they lacked the aptitude, ability, motivation, or self-discipline for military service, or they had demonstrated characteristics not compatible with satisfactory continued service.  The regulation required an uncharacterized description of service for separation under this chapter.

   b.  Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's commander initiated separation action because the applicant would not or could not physically or emotionally adapt to military life.  The applicant claimed to have injured his back; however, doctors believe the problem was more mental than physical.  It is presumed that he was examined by competent military medical personnel.  He received several counseling's due to going on sick call and missing training and for performance related issues.  He acknowledged that he understood he would receive an entry level status character of service and that due to non-completion of his enlistment/active time, VA, and other benefits would be affected.

2.  He was discharged due to entry level performance and conduct.  Because he separated with less than 180 days of service under the provisions of chapter 11, Army Regulation 635-200, the governing regulation required an uncharacterized description of service for discharge.

3.  Regrettably, there is insufficient evidence that would warrant 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)                                         AR20110014044



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ABCMR Record of Proceedings (cont)                                         AR20130021552



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