BOARD DATE:	  21 April 2015

		DOCKET NUMBER:  AR20140013481 


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 correction of his DD Form 214 (Report of Separation from Active Duty), ending on 15 January 1979, to show:

* in item 3 (social security number (SSN)) "xxx-xx-3182" instead of
"xxx-xx-3142"
* in item 9 (Date of Birth (DOB)) 1 December 19XX instead of 12 January 19XX
* an upgrade of his discharge to honorable service or show that he was medically discharged

2.  The applicant states, in effect:

   a.  His SSN and DOB are incorrect on his 1979 DD Form 214.  His correct DOB is "1 December 19XX."  His discharge should be honorable and not general, under honorable conditions.  The United Services Automobile Association (USAA) denied him full coverage because they believe he has a general discharge.

   b.  He enlisted in the U.S. Army Reserve (USAR) in February 1975.  He entered active duty at Folk Polk, LA.  After completing basic training they began advanced infantry training and on 11 April 1975 he tore his patella (kneecap).  He was placed on limited duty with an assigned permanent P3 profile, which resulted in him leaving military occupational specialty (MOS) 11B (infantryman).  He was sent to Fort Lee, VA, for training and his MOS was changed to MOS 76Y (inventory clerk, in effect, unit supply specialist).
   c.  His profile indicated that he was not to stand for long periods of time and no jumping, running, and kneeling.  Upon completion of his training at Fort Lee he was returned to the USAR.  His military life was fine; but his personal life was in chaos.  He had 2 children to support and he was unemployed.  This resulted in him inadvertently missing 3 Reserve meetings over 3 years.  In 1978, he was placed back on active duty which ironically was the best thing that could have happened to him.

   d.  On 3 August 1978, he arrived at Fort Riley, KS, and was assigned duties as an inventory clerk.  He reported to the supply sergeant, who was close to his retirement, and the supply lieutenant.  Both officials were apprised of his condition.  He attempted to perform physical training (PT) and aggravated his injury.  The unit commander advised him not to go to PT.  Subsequently, an infantry sergeant inquired about the reason he was not reporting to PT.  He provided the sergeant an envelope which contained his permanent profile.  The following day the envelope was returned to him, at which time he filed it back with his personal papers.  He never checked what was actually returned to him and he went back to work.

   e.  Approximately 2 weeks later the infantry sergeant returned and informed him that he had to return to PT, at which point he explained that due to his permanent profile he was unable to perform PT.  He went to retrieve his profile to give it to the sergeant again and discovered the envelope did not contain his complete profile.  He asked the sergeant what happed to his profile and was told to look for it.  Since he was unable to find his complete profile he gave his best effort and attempted to perform PT again.  This resulted in further knee pain and swelling.  At that point he realized this was a travesty.  If he had known his mother had a copy of the original profile he would have stayed in the Army. 

   f.  Both his supply sergeant and lieutenant argued unsuccessfully on his behalf.  He was relegated to not doing his job in the supply office and languished in his room for the next 4 months.  He was eventually approached by the unit commander with the separation offer.  Initially, he declined because he had never been written-up or given an Article 15 for disobeying orders at any time.  He did not feel that he should be separated from the military when his dream was to complete 20 years of service.  He accepted a general discharge.  He was offered a general discharge and provided visual documentation to support this.  They also informed him to take up his medical issues upon returning to civilian life.

   g.  Upon returning to civilian life he located the other original copy of his permanent profile in his mother's safe deposit box.  He took the documentation to the Department of Veterans Affairs (VA) for adjudication.  His hearing took place in 1991 in Washington, DC.  His current classification is 100 percent service-connected disabled for “depressive pain disorder.”   

3.  The applicant provides copies of the following:

* two DA Forms 3349 (Medical Condition – Physical Profile Record)
* DD Form 214 (2 copies)
* letter from the Army Review Boards Agency (ARBA)

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the USAR on 23 December 1974 for 6 years.  He was ordered to active duty for 18 months and 25 days.  His records contain the following:

   a.  A DD Form 398 (Statement of Personal History), dated 21 December 1974, which lists his DOB as "1 December 19XX" and does not list his SSN.

   b.  A DD Form 4 (Enlistment Contract – Armed Forces of the United States), dated 23 December 1974, which lists his SSN as "xxx-xx-3142" and his DOB as "1 January 19XX."

   c.  A DA Form 3538 (Certificate and Acknowledgement of Service Requirements for Individuals Enlisting in the USAR Under the Reserve Enlistment Program – 1963 Age 26 or Under), dated 23 December 1974, which lists his SSN as "xxx-xx-3142."

   d.  An AFKA-PA-R Form 37 (Enlistment/Reenlistment), dated 17 January 1975, which shows the Commander, Headquarters, 1st Army, Fort Meade, MD notified the Commander, 315th Infantry, Philadelphia, PA, that the applicant was not qualified for MOS 11B because his mental test scores were too low.  He was retested and change of MOS was requested.

3.  He completed basic training and advanced individual training at the U.S. Army Quartermaster School, Fort Lee, VA.  He was awarded MOS 76Y.  

4.  His records also contain a DD Form 3349, dated 10 April 1975, which shows the Orthopedic Clinic found him medically qualified for limited duty due to chondromalacia of the right knee.  His limited restrictions included no running, speed marching, and/or PT for 7 days (17 April 1975).  The form does not indicate the condition was permanent.

5.  He provided copies of the following:

   a.  A DD Form 3349 (stamped certified true copy of the original), dated 11 April 1975, which shows the Orthopedic Clinic found him medically qualified for limited duty due to chondromalacia right patella (damage of the cartilage of the kneecap).  His limited restrictions included no kneeling, squatting, or speed marching.  The form indicated the condition was permanent. 

   b.  A DD Form 3349 (front page), dated 11 April 1975, which shows the Orthopedic Clinic found him medically qualified for limited duty due to chondromalacia right patella (damage of the cartilage of the kneecap).  His limited restrictions included no kneeling, squatting, or speed marching.  The form indicated the condition was permanent. 

6.  On 8 July 1975, he was honorably released from active duty and transferred to the USAR.  He was credited with completing 5 months and 5 days net active service this period. His DD Form 214 lists in:

* Item 3 – SSN "xxx-xx-3142"
* Item 9 – DOB "1 December 19XX"

7.  On 3 April 1978, active duty orders were requested as a result of his failure to fulfill the satisfactory participation requirements due to the accrual of 10 unexcused absences from unit training assemblies on the following dates:  28-29 January 1978, 12 February 1978, and 25-26 February 1978.

8.  His records further contain the following:

* Orders Number 96-12, dated 18 May 1978, ordering him to involuntary active duty for 18 months and 25 days, with a report date of 3 July 1978; these orders list his SSN as "xxx-xx-3142" and do not list his DOB
* DD Form 220 (Active Duty Report), dated 5 July 1978, which lists his SSN as "xxx-xx-3142"
* DA Form 2-1 (Personnel Qualification Record – Part II), dated 7 July 1978, which lists his SSN as "xxx-xx-3142" and does not list his DOB
* DD Form 93 (Record of Emergency Data), dated 25 July 1978, which lists his SSN as "xxx-xx-3142" and does not list his DOB

9.  On 3 July 1978, he entered active duty in MOS 76Y.  He was assigned to Company B, 1st Battalion, 63rd Armor, Fort Riley, KS.

10.  His records further contain the following:

   a.  A Standard Form (SF) 93 (Report of Medical History), dated 6 July 1978, wherein he indicated he was in fair health and he was unable to kneel too much and walk fast.  This form lists his SSN as "xxx-xx-3142."

   b.  An SF 88 (Report of Medical Examination), dated 6 July 1978, which shows he underwent a medical examination on that date for the purpose of entrance on active duty (EAD).  He was found qualified for military service (EAD).

   c.  A DA Form 2496 (Disposition Form), dated 3 January 1979, which shows the applicant's unit commander initiated action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 5-31 (Expeditious Discharge Program (EDP)), with a general discharge.  The unit commander stated the applicant was ordered to active duty for 18 months and 25 days with a reporting date of 3 July 1978.  He also stated the applicant had been assigned 3 jobs in the past month.  He had been unwilling or unable to accomplish the most menial job in the Army.  He had gone on sick call every day since arriving in that unit.  The Division Surgeon advised the commander and the applicant to stop; he had no real medical problem.  He felt the applicant would never become a productive Soldier.  The applicant would not only be a hindrance to any unit assigned, but would also become a disciplinary problem.  He recommended discharge at the earliest possible time.  This form lists his SSN as "xxx-xx-3142" and does not list his DOB.

11.  On 8 January 1979, the separation authority approved the applicant's discharge and directed the issuance of a general discharge.



12.  Accordingly, on 15 January 1979, he was discharged in pay grade E-2.  He was credited with completing 6 months and 13 days of active service.  His DD Form 214 lists in:

* Item 3 - SSN "xxx-xx-3142"
* Item 9 - DOB "12 January 19XX"

13.  He also provided a copy of a letter, dated 8 December 2010, wherein ARBA advised him that his request must be directed to the ABCMR for consideration since his application was received after the Army Discharge Review Board's    15-year statute of limitations.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for administrative separation of enlisted personnel.  The regulation stated in:

   a.  Paragraph 5-31 – The EDP provided for the discharge of individuals who had completed at least 6 months, but less than 36 months of active duty and who demonstrated by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential, that they could not or would not meet acceptable standards.  Such personnel were issued a general or honorable discharge, as appropriate.

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, set forth policies, responsibilities, and procedures that apply 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.  

DISCUSSION AND CONCLUSIONS:

1.  With respect to the applicant's DOB, the evidence of record confirms upon his enlistment, he completed a DD Form 398 and listed his DOB as 1 December 19XX.  This DOB is consistent with several documents in his service record.  It appears his DD Form 214 ending on 15 January 1979 incorrectly lists his DOB.  Therefore, he is entitled to correction of item 9 of his DD Form 214 ending on 
15 January 1979 to reflect the DOB listed on his DD Form 214 ending 8 July 1975.
2.  With respect to his SSN:

   a.  The evidence of record shows he served in the USAR and on active duty using SSN "xxx-xx-3142."  This SSN is consistent throughout his military service. There is no evidence and he did not provide sufficient evidence showing his SSN contains an error.  Absent convincing independent and verifiable evidence to the contrary, it is presumed that this DD Form 214 ending on 15 January 1979 was correct at the time it was prepared.  Therefore, there is an insufficient evidentiary basis to grant the requested relief.

   b.  For historical purposes, the Army has an interest in maintaining the integrity of its records.  The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  In the absence of showing a material error or injustice, there is a reluctance to recommend that those records be changed.  While it is understandable that the applicant now desires his 1979 DD Form 214 to reflect the requested SSN, there is not a sufficiently compelling reason for compromising the integrity of the Army's records at this late date.

   c.  A copy of this decisional document will be filed in his records to clarity the difference between the requested SSN and the SSN used during his periods of service.

3.  With respect to the applicant's characterization of service and reason for separation: 

   a.  The evidence shows he was ordered to active duty on 3 July 1978.  His unit commander initiated separation action against him under the EDP.  The unit commander stated the applicant had been assigned 3 jobs in the past month.  He had been unwilling or unable to accomplish the most menial job in the Army.  The Division Surgeon advised the applicant's commander and the applicant that the applicant should stop going on sick call every day, because he had no real medical problem.  The separation authority approved his discharge and he was discharged accordingly.

   b.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  He completed less than 7 months of his more that 18-month service obligation.  Thus, his service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel.

   c.  There is no evidence in his records and he provided none to show he suffered an illness or an injury that rendered him unable to reasonably perform the duties required of his grade and/or MOS during his period of service from July 1968 to January 1969.  He appears to have a common misconception that if he was injured or got sick, he would be automatically entitled to a medical discharge.

   d.  The Army must find that a Soldier is physically unfit to reasonably perform the duties associated with the Soldier's rank, grade or specialty and assigned an appropriate disability rating before the Soldier can be medically separated.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the medical processing channels.  In this case, he failed to produce any evidence to substantiate a medical discharge.

   e.  Without evidence to the contrary, his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  He was properly discharged in accordance with pertinent regulations with due process.  

   f.  In view of the foregoing, he is not entitled to an upgrade of his general discharge to a fully honorable or a medical discharge.

4.  It is noted the ABCMR does not grant requests for a change or upgrade of discharges for the purpose of an individual qualifying for benefits from other agencies nor based on award of a VA service-connected disability rating.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X______  __X______  __X__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting the DOB from item 9 of his DD Form 214 ending on 15 January 1979 and adding the DOB as it is listed on his DD Form 214 ending on 8 July 1975.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to:

* changing the SSN listed in item 3 of his 1979 DD Form 214
* upgrading his general discharge to an honorable or a medical discharge



      _______ _ 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)                                         AR20140013481



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ABCMR Record of Proceedings (cont)                                         AR20140013481



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