IN THE CASE OF:  	  

		BOARD DATE:  	  17 March 2015

		DOCKET NUMBER:  AR20140009569


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, correction of his record to show he was medically retired vice being honorably released from military service.   

2.  The applicant states:

   a.  He was not aware of the process to submit an appeal within 15 years, 
since he was a member of the Army National Guard (ARNG).  On 17 October 1976, the ARNG sent him to Fort Leonard Wood where he had his first accident in November.  While in training, he jumped off the monkey bars and felt a horrible pain.  He went to see a doctor and they prescribed pain killers and an elastic bandage which did not help.  

   b.  He was injured again while running to the mess hall and bumped into a
pile of rocks and fell onto his knees over a concrete sidewalk, ripping his pants and scratching his right knee.  He went back to the back hospital and they gave him more pain killers and another bandage.  He was still allowed to train with both knees bandaged.

   c.  He was told after his injuries that he would be going home since he would 
not be able to finish the advance individual training.

   d.  In 1979, the Veterans Administration (VA) hospital did a study on his left
knee revealing that he had a torn meniscus.  He received an operation, but it was not completed fixed.  Now he is scheduled for a knee replacement.

   e.  he tried to resolve the issue in Puerto Rico, but is not receiving any 
assistance, and the VA told him that he was not a veteran to get him out of the hospital.  

3.  The applicant provides:

* a self-authored letter
* DD Form 214 (Report of Separation from Active Duty).    
* discharge certificate
* medical documentation

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 Puerto Rico Army National Guard (PRARNG) on 
14 March 1976.  

3.  On 17 October 1976, the applicant entered active duty for military entry training.  He did not complete basic training.

4.  Service medical records show that while in basic training, the applicant fell off of the monkey bars and injured his knee.  He received a medical evaluation and was given pain medication and a knee bandage.  Shortly thereafter, he injured his knee again when he fell while running.  He was given more pain medication and another knee bandage.

5.  On 18 November 1976, he underwent a medical examination in conjunction with separation process under the provisions of Army Regulation 635-200 paragraph 5-39 (Trainee Discharge Program).  He indicated various ailments; however, he was found fit for separation.  He was honorably released from active duty on 2 December 1976, with 1 month and 16 days of active duty service.

6.  The applicant provides post-service medical documentation to show he had multiple issues including surgery for his knee, and that his injury was due to military service while in training.

7.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel from the Army.  Paragraph 5-39 of this regulation, in effect at the time, governed the Trainee Discharge Program (TDP).  This program provided for the separation of service members who lacked the necessary motivation, discipline, ability or aptitude to become productive Soldiers or have failed to respond to formal counseling.  The regulation essentially requires that the service member must have voluntarily enlisted; must be in basic, advanced individual training, 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 on their 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 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Separation or retirement by reason of disability requires processing through the PDES.  The regulation states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  
 
 DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for correction of his record to show he was medically retired vice honorably discharged.   

2.  All documentation in the applicant's record shows that although he received injuries during basic training, he was still fit for duty.  

3.  The post-service medical documentation that the applicant now provides is an issue with the VA.  The VA awards compensation based on statutory and regulatory authority separate from that of the Army based on service connected disabilities.  

4.  The record shows all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The evidence of record does not support a medical retirement.  There is no evidentiary basis upon which to grant the 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)                                         AR20140004356



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140009569



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1