BOARD DATE:	  24 March 2015

		DOCKET NUMBER:  AR20140012890 


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 change of his general discharge to a medical discharge.

2.  The applicant states, in effect:

* he was in a sleeping bag in the back of a 2 1/2 ton truck when an accident occurred
* he was thrown out of the bed of the truck onto the ground; as a result, he injured his back
* the truck had been returning to Coleman Barracks, Mannheim, GE from a field training exercise at Grafenwoehr Training Area, Grafenwoehr, GE
* he did not receive an x-ray at the medical clinic at Grafenwoehr because they did not have one
* when he returned to Coleman Barracks, Sandhofen, GE, he tried to be seen at the emergency room, but was denied access
* he was told he would see a doctor when he got out of the Army; he was subsequently kicked out
* "they" play games with people's lives today; looking at the Department of Veterans Affairs clinics he sees more deaths, more homelessness, and more Veterans losing their families
* he was told his medical records were lost and he believes this happened because "they" did not want to do the right thing by giving him a medical discharge
* nothing was done about his back injury which resulted from the accident, and he is suffering still
* he was told to guard a bomb he and another Soldier found; he stayed there all night until the bomb squad came to disarm it; he was never recognized for this

3.  The applicant provides a document titled U.S. Representative Privacy Release Form for Veterans Casework with attachments (DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), DD Form 214 (Report of Separation from Active Duty), and medical records dating from 1975 and 1976).

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 9 August 1974 and, following initial training, was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade held was private/E-2.  His only assignment after training was in Germany from 14 April 1975 to on or about 31 March 1976.

3.  Available records indicate the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on one occasion.  On 28 January 1976, he received NJP for one specification of disobeying the lawful order of a superior noncommissioned officer.  His punishment included reduction in rank/grade from private/E-2 to private/E-1.  

4.  On 10 February 1976, his commander initiated separation action under the provisions of a letter, dated 20 August 1973, from Headquarters, Department of the Army, subject: Expeditious Discharge.  

	a.  The applicant was informed that the basis of his commander's action was the applicant's total recalcitrance with regard to displaying a proper attitude and appearance.  The applicant had failed to demonstrate promotion potential and appeared unable to expend effort constructively.  
	b.  The applicant was further told he would be recommended for a general discharge under honorable conditions, and would have the opportunity to consult with legal counsel as well as to submit statements in his own behalf.

5.  On 12 February 1976, the applicant acknowledged notification and waived his right to present a statement.  He stated he consented to the discharge and understood he could expect to encounter substantial prejudice in civilian life by accepting a general discharge.  He also affirmed he had been given the opportunity to consult with legal counsel.

6.  On 25 February 1976, the separation authority approved the commander's recommendation and directed the applicant be discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-37 (Discharge for failure to demonstrate promotion potential).  He also directed that the applicant be issued a general discharge under honorable conditions.  On 31 March 1976, the applicant was discharged accordingly.

7.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 5-37 and received a general discharge under honorable conditions.  It further shows he completed 1 year, 7 months, and 23 days of creditable net active service.  He was authorized the National Defense Service Medal.

8.  On 7 December 1984, the Army Discharge Review Board notified the applicant the board had determined he had been properly and equitably discharged.  His request for a change in the character and/or reason for discharge was therefore denied.

9.  The applicant provides extracts from his medical records dated around the time of the truck accident.  These contain the following entries:

	a.  FGMD Form 5314 (Back/Neck Pain), dated 21 January 1975, shows the applicant was seen for lower back pain (LBP) being experienced for about 1 day.  The applicant stated he felt no numbness, just leg weakness.  He was noted as having full range of motion.  He was prescribed medications and the application of heat to the lower back.

	b.  Standard Form (SF) 600, dated 7 March 1975, shows the applicant was seen in the Physical Therapy Clinic for LBP.  The notes state:

* the applicant initially injured his back 3 years earlier
* the injury was, therefore, noted as having existed prior to service
* at the time of that injury he did not see a doctor; he sought massage therapy which resolved the pain
* after this, he experienced recurrent pain as a result of lifting
* his current pain started 2 days prior and radiated to his legs
* there was a family history of back problems
* the impression by the clinician was mechanical LBP
* she prescribed ice massage, back flexions, and exercises

	c.  SF 600, dated 17 November 1975, U.S. Army Health Clinic, Grafenwoehr, shows the applicant was seen after being involved in a truck accident and was complaining of a back injury.  Tenderness was noted on the lower spine with spasms.  He was prescribed pain medication and heat.

	d.  SF 600, dated 22 November 1975, Mannheim Emergency Room, shows the applicant was seen in regard to injuries sustained in the truck accident on 17 November 1975.  The notes state x-rays of the applicant's spine and pelvis were taken at the Grafenwoehr clinic.  The applicant was complaining of persistent pain mid-thigh and lower spine primarily aggravated by pressure and movement.  Treatment included heat, rest, and pain medications, with follow-up by the clinic at Coleman Barracks.

	e.  SF 600, dated 11 December 1975, 735th Medical Detachment, (Coleman Barracks) Sandhofen, GE, shows the applicant complained of muscle spasms in his back.  He had full range of motion (emphasis added).  He was given quarters and directed to return to the clinic the next day.

	f.  SF 600, dated 12 December 1975, 735th Medical Detachment, shows the patient had gone to work the day prior rather than taking bed rest as prescribed because he did not want to work that weekend.  The applicant said he had no complaints at that time (emphasis added).  On this same form is an entry from 12 February 1976 wherein the applicant had gone to the clinic complaining of LBP.  He was given pain medication and prescribed heat.

	g.  A form titled Symptoms, Diagnosis, Treatment, Treating Organization, with two entries made by a physician's assistant (PA) dated 19 March 1976 and 23 March 1976, respectively.  The 19 March entry states the applicant was seen for LBP and abdominal pain.  Spasms with edema (swelling) were noted.  He was prescribed medication for both.  The 23 March entry addresses the same issues identified on 19 March; the pain medication was stopped and replaced by Obecalp (placebo).

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-1, provides that 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating.

11.  Army Regulation 40-501 (Standards of Medical Fitness), in effect at the time, provides medical retention standards and is used by medical evaluation boards to determine which medical conditions will be referred to a physical evaluation board (PEB).  Paragraph 3-3 states Soldiers whose medical conditions fail retention standards are to be referred to a PEB as defined in Army Regulation 635-40.  

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

	a.  Chapter 5-37, in effect at the time, states personnel whose duty performance, acceptability for the Service, and potential for continued effective service fall below the standards required for Army enlisted personnel may be separated under this provision.  Discharge is limited to:

* personnel who fail to advance to private/E-2 after 4 months on active duty and 
* those who fail to demonstrate the potential to justify advancement to the grade of private first class/E-3 after attaining the normal time-in-service and time-in-grade criterion

	b.  Paragraph 3-7a, currently in effect, provides that 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.

	c.  Paragraph 3-7b, currently in effect, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel because of his inability to adapt to military life.  Accordingly, his immediate commander initiated separation action against him.  He was advised of his rights and consented to the discharge action.

2.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which might have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case. 

3.  The applicant contends the injuries he sustained in the truck accident should have been addressed under the provisions of Army Regulation 635-40 and resulted in a medical discharge.  

	a.  A review of the medical records he provided, however, reveals he had ongoing issues with LBP that predated his entry on active duty.  The concern would therefore be whether his LBP was aggravated by his injuries in the truck accident to such an extent as to preclude him from being able to perform military duties.

	b.  It is clear from the evidence presented he was injured in a truck accident; however, his injuries did not require hospitalization nor was any extensive treatment prescribed other than pain medications, rest, and heat.  

	c.  Although he claims x-rays were never taken immediately following his injury, the evidence of record contradicts this.  While the results of the x-rays taken are not described, there is also no indication he suffered any bone fractures.

	d.  Nothing in the evidence he offers shows his injuries precluded his ability to perform his military duties.  

* He returned to duty following the accident
* there is an entry which states, rather than complying with the PA's direction to take bed rest, he worked so as to avoid having to perform duties over the weekend

4.  Based upon the foregoing, there is insufficient evidence 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)                                         AR20140012890





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ABCMR Record of Proceedings (cont)                                         AR20140012890



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