IN THE CASE OF:  	  

		BOARD DATE:  7 July 2015    	  

		DOCKET NUMBER:  AR20140019795 


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 an upgrade of his general discharge to an honorable discharge.

2.  The applicant states:

   a.  While he was stationed at Fort Lewis, WA, he was sent to Airborne School.  While there he sustained an injury to his left knee which ultimately caused him to not complete the course.  He stayed on light duty for several weeks with no change.  Upon his return to duty, he was harassed and forced to do excessive physical training (PT).  He was forced out of the Army by his platoon sergeant who failed him on the PT tests.  He had been dealing with this for some time and his friend, who is on active duty, suggested he appeal his discharge.  This occurred over 23 years ago and he has no paperwork to support this request.  He was young and didn't really know what to do.  When he complained to his first sergeant (1SG), the 1SG told him that he had to pass the PT test or he was out of the Army.

   b.  He has been a public servant working and volunteering as a firefighter and paramedic for the last 13 years.  While he understands it has been a long time since he was discharged, he believes he was forced out of the military.  He had just reenlisted and was assigned to an airborne unit (without airborne qualifications).  When he was unable to complete the course he was forced out.  He was not given a fair chance to rehabilitate his knee and he still lives with the pain today.  He is not seeking anything from the military other than a correction of his discharge from general to honorable.  He is humbly requesting consideration of his request.  He is willing to appear in person to explain this or meet with whomever he needs to.

3.  The applicant provides no additional evidence.

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 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 insufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the Regular Army (RA), in pay grade E-1, on 30 December 1986, for 3 years.  At the time of his enlistment, he was 18 years, 2 months, and 20 days of age.  He held military occupational specialty 31C (single channel radio operator).  His records contain the following:

   a.  A Standard Form (SF) 558 (Emergency Care and Treatment), dated 15 February 1987, which shows he received treatment for left ankle pain lasting for 3 weeks.

   b.  Three SFs 600 (Health Record – Chronological Record of Medical Care) which shows he received treatment on:

* 13 March 1987 – for right heel pain lasting for 24 hours; he was given medication for pain and he was recommended for full duty
* 15 May 1987 – for right foot pain after stepping on an uneven surface and twisting his foot; he was diagnosed with a right foot strain and given medication for pain
* 23 November 1987 – for sore and stiff left knee lasting for 1 month; he was referred to physical therapy and given medication for pain

3.  He was promoted to pay grade E-4 on 15 August 1988.  He served in Germany from 26 June 1987 through 23 July 1989 and he was assigned to Headquarters and Headquarters Company, Combat Aviation Brigade.

4.  He reenlisted in the RA on 16 May 1989 for 3 years.

5.  His records contain the following:

   a.  An SF 88 (Report of Medical Examination) which shows he underwent an examination on 11 September 1989 for the purpose of attending Airborne School.  The form noted his abnormality of bilateral valsalva (autonomic control to clear the ears and sinuses).  He was found qualified to attend school.

   b.  An SF 93 (Report of Medical History), dated 11 September 1989, wherein he stated he was in good health and had sustained a head injury (date not given).

   c.  A DA Form 5181-R (Screening Note of Acute Medical Care), dated 14 October 1989, which shows he received treatment for right leg pain that he stated was exercise related.  He was diagnosed with shin splints and given medication for pain.

   d.  A DA Form 5181-R, dated 29 October 1989, which shows he received treatment for a swollen left knee with pain.  The form noted that he had started airborne training for 2 days.  He was diagnosed with overuse syndrome and limited from running, marching, or jumping for 2 days.

   e.  Six SFs 600 which shows he received treatment on:

* 4 December 1989 – for an injury to his left knee from running in boots at jump school and prior problems from 1 year before; he was diagnosed with resolving tendonitis, limited from running for 1 week, and given medication for pain
* 28 December 1989 – for left knee pain from running in his boots at jump school; he was placed on profile to run at pace and tolerance for 10 days
* 27 March 1990 – for chronic knee pain since December 1989; he was diagnosed with chondromalacia (damage to the cartilage under the kneecap) of the left knee; he was advised to consult with sports medicine
* 5 April 1990 – for fitting and receiving cork and leather arch supports; he was advised to report to the clinic rehabilitation for 3 weeks and run and march at his own pace for distance and no jumping
* 13 June 1990 – for chronic left knee pain as a result of an injury in November 1989 at jump school; the form noted he had consulted with physical therapy, but was unable to attend; he was advised to continue physical therapy
* 23 August 1990 – for  chronic knee pain since December 1989; he was recently taken off profile and experiencing same difficulty; he was diagnosed with bilateral chondromalacia and placed on profile for 30 days

   f.  A DA Form 3349 (Physical Profile), dated 23 August 1990, which shows he was assigned a temporary profile of T3 for rating factor L (lower extremities) for bilateral chondromalacia of the knees, with an expiration date of 23 September 1990.  The form stated the medical condition should not limit him from the PT test.

   g.  Two SFs 600 which shows he received treatment on:

* 21 November 1990 – for left knee pain after slipping on the ice during PT 
* 4 February 1991 – for pain/stiffness in his spine; he was given medication for pain and was advised to consult with physical therapy for ultrasound heat

6.  He received counseling on:

* 15 January 1991 – for failing his second Army Physical Fitness Test (APFT) and possible elimination from the military under Army Regulation 635-200 (Personnel Separations – Enlisted Separation), chapter 13, for unsatisfactory performance
* 23 January 1991– for failing the record APFT and administrative elimination from the service with a general discharge
* 24 January 1991 – for being absent from PT formation and his continued unsatisfactory performance and/or misconduct resulting in his administrative elimination from the service
* 4 March 1991 – for failing a company level TA-50 inspection by the commander
* 5 March 1991 – for failing his APFT on 4 March 1991
* 1 March 1991 – for failing his APFT and the recommendation for his discharge under Army Regulation 635-200, chapter 13, for unsatisfactory performance

7.  On 26 March 1991, the applicant’s company commander initiated action against the applicant to separate him under the provisions of Army Regulation 635-200, paragraph 13-2, for unsatisfactory performance of duty, with a general discharge.  He advised the applicant of his rights.

8.  On 1 April 1991, after consulting with counsel, the applicant acknowledged receipt of the proposed separation.  He also acknowledged he could receive a general discharge and the results of the receipt of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.

9.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 4 April 1991, shows he was found to be mentally responsible and was fit for chapter separation.

10.  An SF 93 shows he underwent an examination on 2 April 1991 for the purpose of a chapter 13 separation and he was found qualified for separation.

11.  An SF 93, dated 2 April 1991, shows he stated he was in good health and suffered from painful knees since November 1989 as a result of an injury in jump school.

12.  On 4 April 1991, the applicant's company commander recommended the applicant be discharge under chapter 13.  The company commander stated the applicant repeatedly failed the APFT.

13.  On 22 April 1991, the separation authority approved the applicant’s discharge and directed the issuance of a general discharge.

14.  He was discharged accordingly, in pay grade E-4, on 29 April 1991.  He was credited with completing 4 years, 4 months, and 29 days of active service.  At the time of his discharge, he was 22 years, 6 months, and 19 days of age.

15.  There is no evidence he petitioned the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his general discharge.

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

   a.  Paragraph 13-2 – Commanders would  separate a Soldier for unsatisfactory performance when it was clearly established that the Soldier would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  The seriousness of the circumstances was such that the Soldier’s retention would have an adverse impact on military discipline, good order, and morale.  The service of Soldiers separated because of unsatisfactory performance would be characterized as honorable or under honorable conditions (general) as warranted by their military records. 

   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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of records show the applicant received treatment between February and November 1987 for left ankle pain, right heel pain, right foot pain, and a sore and stiff left knee.  In September 1989, he was medically found qualified for attending Airborne School.  Between October and December 1989, he received medical treatment for an injury to his left knee from running in boots at jump school.

2.  He was subsequently diagnosed with overuse syndrome and placed on a profile.  In December 1989, after complaining of chronic knee pain he was diagnosed with chondromalacia of the left knee and was advised to consult with sports medicine.  In August 1990, he was diagnosed with bilateral chondromalacia and placed on profile for 30 days.  The DA Form 3349 stated his medical condition should not limit him from the PT test.

3.  He received counseling between January and March 1991 for failing his second AFPT and was advised of the possibility of a chapter 13 administrative discharge in the event he failed the next AFPT.  Based on his failing the next AFPT, his company commander initiated action to separate him under the provisions of Army Regulation 635-200, paragraph 13-2, for unsatisfactory performance.  The separation authority approved his discharge and directed the issuance of a general discharge.  He was discharged accordingly on 29 April 1991.

4.  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.  The evidence shows his misconduct diminished the quality of his service below that meriting a fully honorable discharge.

5.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to an upgrade of his discharge.

6.  His contention that he was young at the time was also considered.  He was 18 years, 2 months, and 20 days of age at the time his initial enlistment and 22 years, 6 months, and 19 days of age at the time his discharge.  There is no evidence he was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service. 

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)                                         AR20140019795





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ABCMR Record of Proceedings (cont)                                         AR20140019795



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