IN THE CASE OF:	  

		BOARD DATE:	  28 July 2015

		DOCKET NUMBER:  AR20140019801 


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 basis for his general under honorable conditions discharge be changed from Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-37 (Discharge for Failure to Demonstrate Promotion Potential), to a discharge for being unfit due to a medical condition under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

2.  The applicant states, in effect:

* medical information was being gathered at the last minute in an effort to change the reason for his discharge to be for medical reasons; despite this he was given a general discharge under honorable conditions
* while assigned to Fort Bragg, NC, he was hurt during a training exercise at Fort Stewart, GA
* the Fort Stewart training exercise was simulating combat with a supposed enemy
* he was a gunner on a jeep; after pulling up to a group, he was pulled off the jeep and was knocked unconscious as a result of being hit in the head with the butt of an M-16
* someone checked his injury and he was sent back to participate in the exercise
* at the conclusion of the training, he returned to Fort Bragg where he went on sick call to be treated for headaches
* this continued for a while and he was taken off of jump-status
* he received orders for Fort Campbell, KY, but about 4 days later he was sent to see his first sergeant who told him he was being discharged; the reason given was to make room for Soldiers who were "coming home"
* he was given 3 days to clear Fort Bragg prior to his discharge; he believed he was receiving a medical discharge but later learned he had received a general discharge under honorable conditions
* at the time there was nothing he could do, but he feels he gave his all, only to be hurt and then discharged
* he feels what occurred was wrong and needs to be corrected; he has paid for this the rest of his life by virtue of continuing to have headaches as a result of this incident 
* he has been fighting this since 1975 without success

3.  The applicant provides a Veterans Administration (now Department of Veterans Affairs) (VA) Form 21-526 (Veteran's Application for Compensation or Pension), dated 10 May 1977.

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 21 January 1974.  After completing initial training, he was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade held was private first class/E-3.

3.  His records contain Special Orders Number 29, dated 8 February 1975, issued by Headquarters, 82nd Airborne Division wherein it states the applicant's hazardous duty is terminated effective 28 January 1975.  No reason is given, but the order states the airborne qualifier of "P" is withdrawn, his Parachutist Badge is revoked, and he is no longer authorized to wear the Parachutist Badge on any uniform. 

4.  On 1 April 1975, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ).  He was charged with one specification of stealing a pair of cold weather boots valued at $39.10 and one specification of unlawfully concealing the stolen cold weather boots.  His punishment included a suspended reduction in rank.

5.  On 14 June 1975, the applicant's company commander notified him in writing of his intent to initiate separation action under the provisions of paragraph 5-37, Army Regulation 635-200.  The commander stated he would be recommending the applicant to receive a general discharge certificate.  His reasons for recommending separation were shown as:

* misconduct
* substandard performance
* extreme personal problems, including undocumented indebtedness

6.  Also on 14 June 1975, the applicant acknowledged the commander's intended action.  He stated he:

* voluntarily consented to the discharge action
* waived his right to submit a statement in his own behalf
* understood a general discharge under honorable conditions could cause him to encounter substantial prejudice in civilian life
* acknowledged he had been provided the opportunity to consult with an officer of the Judge Advocate General's Corps

7.  On 17 June 1975, the applicant's battalion commander recommended approval of the company commander's request for separation action.  In his indorsement, the battalion commander noted the applicant had been counseled on several occasions and displayed an attitude of apathy toward military life.

8.  On 23 June 1975, the separation approval authority approved the company commander's recommendation for separation and directed the applicant receive a general discharge under honorable conditions.  On 22 July 1975, he was discharged accordingly.

9.  The applicant's DD Form 214 (Report of Separation from Active Duty) showed he completed 1 year, 6 months, and 22 days of net active service this period .  The authority and reason for discharge is shown as paragraph 5-37, Army Regulation 635-200.  His character of service is under honorable conditions.  He was awarded or authorized the  :

* National Defense Service Medal
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)
* Parachutist Badge

10.  The applicant official military personnel file (OMPF) is void of any documentation, medical or otherwise, which indicates he was injured during a training exercise at Fort Stewart.  Additionally, there is no record which would suggest he was in any way restricted by a medical condition in the performance of his duties.

11. The applicant provides a VA Form 21-526, dated 10 May 1977) (nearly 2 years following his separation).  The form includes the following information:

* the applicant requested hospitalization or medical care
* item 25 (Nature of Sickness, Disease, or Injuries for which Claim is Made and Date Each Began), 1974 - head injury - fell off jeep
* item 27 (If you received any treatment while in Service, fill in the following information) shows:  nature of injury - head injury, dates of treatment - 1974 & 1975, location - U.S. Army Hospital, Fort Bragg, Organization - Company D, 1st Battalion, 325th Infantry Regiment, 82nd Airborne Division
* item 28 (List civilian physicians and hospitals where you were treated for any injury shown in item 27) shows treatment by three doctors between 1975 and 1977

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, states in paragraph 3-1, 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.

13.  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.

14.  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 
* 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 combat training exercise should have been addressed under the provisions of Army Regulation 635-40 and resulted in a medical discharge.

	a. His records are void of any documentation which would show:

* he participated in combat-simulated training at Fort Stewart
* sustained a head injury while participating in such  training
* that the applicant was unable to perform his duties as a result of any medical conditions, to include any headaches resulting from a head injury (emphasis added)

	b.  The applicant only provides a copy of his application to VA for medical care, which was dated almost 2 years after his separation.  This application showed he claimed to have received treatment from both military and civilian doctors for his head injury. However, He provides no other medical documentation which might support of his claim or show what type of treatment he might have received.  Nor does he offer any evidence which could verify his contention of having sustained a head injury during training, or that his contested injury affected his ability to perform the duties required of his grade and specialty.

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)                                         AR20140019801





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140019801



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1