IN THE CASE OF:	   

		BOARD DATE:	  2 December 2014

		DOCKET NUMBER:  AR20140007100 


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 the reason and authority on his DD Form 214 (Report of Separation from Active Duty) with an effective date of 7 March 1975 be changed.  

2.  The applicant states he was considered totally disabled and discharged under chapter 5 in 1975 after unsuccessfully going through an on-base rehabilitation unit at Fort Campbell, KY.  This was blatantly stated on his original DD Form 214 making it almost impossible for him to become gainfully employed once he returned to civilian life. 

	a.  At the age of 59/60 he is now in desperate need of these disability benefits.  He sent for his DD Form 214 and found the information had been tampered with and now shows no disposition related to his disability at discharge.

	b.  In all the years since his discharge he did not want to believe he was totally disabled as they had characterized him when he was discharged in 1975.  His original DD Form 214 embarrassingly characterized his discharge in item 9c (Character of Service) and assigned him a reentry eligibility (RE) code of 4 in 
item 10 (Reenlistment Code) meaning he could not reenlist even though he tried many times.  

	c.  In 2009 he exited his last of many rehabilitation units and received assistance in filing for a non-service connected pension.  He called the Department of Veterans Affairs (VA) inquiring why none of his current disabilities were considered service-connected as stated at the time of his discharge.  He was told to file a claim and he then sent for his DD Form 214.  When he received the DD Form 214 he noticed it had been tampered with.   He was told the VA only used the DD Form 214 to validate his time in service.  He now feels he has been denied his earned benefits because of falsifications on his DD Form 214.

3.  The applicant provides:

* his DD Form 214
* a letter, dated 23 September 2013 

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 10 October 1972, he enlisted in the Regular Army for 3 years.  On 
22 February 1973, he was assigned to the 34th Transportation Company at Fort Campbell, KY.

3.  On 25 October 1974, the Drug Control Officer at Fort Campbell placed the applicant on follow-up status as a rehabilitation failure.

4.  The applicant's commander notified him that he was initiating action to discharge him under the provisions of paragraph 5-37 (Expeditious Discharge Program) of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  He was recommending the applicant receive a general discharge certificate.  The commander stated the reasons for his proposed action were the applicant was a drug rehabilitation failure and his attitude and military job performance were far below that of acceptable standards.

5.  He was further advised that if he received a general discharge certificate, he could expect to encounter substantial prejudice in civilian life.  The commander also advised the applicant of his right to: 
* consult with an officer of the Judge Advocate General's Corps prior to completing his acknowledgements
* submit a statement in his own behalf

6.  The applicant was advised he had the right to decline this discharge, but if subsequent misconduct indicated that such action was warranted, he could be subjected to disciplinary or administrative separation procedures under other provisions of law or regulation.

7.  The applicant acknowledged he was notified of the proposed discharge action and he voluntarily consented to the discharge.  He did not submit statements in his own behalf.   He understood if he was furnished a general discharge under honorable conditions he may expect to encounter substantial prejudice in civilian life.  He acknowledged that he had been provided the opportunity to consult with a Judge Advocate Officer

8.  On 30 January 1975, the applicant's commander recommended he be separated from the Army under the provisions of paragraph 5-37 of Army Regulation 635-200, due to the his poor attitude, lack of motivation, lack of self-discipline, and inability to adapt socially or emotionally to military life.  He was a drug rehabilitation failure.  The applicant had been advised of the action contemplated and had acknowledged receipt.  The applicant consented to separation under the Expeditious Discharge Program.

9.  On 24 February 1975, the appropriate authority approved his separation under the provisions of paragraph 5-37 of Army Regulation 635-200 for failing to meet acceptable standards for continued military service.  The issuance of a General Discharge Certificate was directed.

10.  On 7 March 1975, he was discharged.  He completed 2 years, 4 months, and 28 days of total active service that was characterized as under honorable conditions.  He was assigned the RE code 3.  He was assigned the Separation Program Designator (SPD) code "KMN."  Army Regulation 635-5-1 (SPD Codes), then in effect, specified the narrative reason for SPD code "KMN" as "Failure to maintain acceptable standards for retention (Expeditious Discharge Program)."  The authority under this SPD code was paragraph 5-37, Army Regulation 635-200.

11.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

12.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 5-37 (Expeditious Discharge Program) provided for the discharge of enlisted personnel who demonstrated they could not or would not meet acceptable standards required of enlisted personnel in the Army because of the existence of one or more of the following conditions:  poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential.  The regulation provided that no individual would be discharged under this provision unless the individual voluntarily consented to the proposed discharge.  Individuals discharged under this regulation were issued either an honorable or a general discharge.

13.  Title 38, U.S. Code, provides for the VA to make a determination and award compensation for disabilities which were incurred in or aggravated by active military service.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence the applicant was found unfit for a medical condition that would have provided for him to be discharged for a disability.  The evidence does show he was a drug rehabilitation failure; however, drug use is not a disability.

2.  The evidence shows he was properly and equitably discharged in accordance with regulations in effect at the time.  His commander notified him of the reasons and the type of discharge he was recommending.  He voluntarily consented to the proposed discharge.  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.

3.  He also acknowledged that he understood if he was issued a general discharge under honorable conditions he could expect to encounter substantial prejudice in civilian life and he was provided the opportunity to consult with an officer of the Judge Advocate General's Corps.

4.  In view of the above, the reason and authority shown on his DD Form 214 with an effective date of 7 March 1975 are correct.  There is no evidence that the reason and authority were tampered with or changed since the date of his discharge.  Therefore, there is no basis on which to change the reason and authority on his DD Form 214.

5.  In his statement the applicant used the terms "service connected" and "non-service connected."  These terms are normally associated with the VA when making their determination for disabilities incurred in or aggravated by active military service.  Any claims or issues concerning service connection should be addressed to that 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)                                         AR20140007100



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ABCMR Record of Proceedings (cont)                                         AR20140007100



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