IN THE CASE OF:	  

		BOARD DATE:   25 August 2015      

		DOCKET NUMBER:  AR20140021618 


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 record to show he was medically discharged.  

2.  The applicant states, in effect, that someone forged his signature on a DA Form 2823 (Sworn Statement) which states “while trying to hold up one of the pole of a tent, same pole slid over my hand (right) causing a pain in my right hand.   I was referred to the Bn Med Section for treatment.”

3.  The applicant provides:

* DD Form 2823 (correct form)
* DD Form 2823 (alleged forged form)
* DD Forms 2173 (Statement of Medical Examination and Duty Status)
* DD Form 214 
* National Guard Bureau (NGB) Form 22
* A letter to the Puerto Rico Army National Guard dated 11 December 2013
* A Department of the Army Certificate of Training
* A Diploma 
* A DD Form 689 (Individual Sick Slip) dated 5 June 1979
* A letter of dismissal from the Old Dominion Freight Line, Incorporated
* Cliffside Park Police Incident Report 




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.  On 1 July 1977, the applicant enlisted in the Puerto Rico Army National Guard (PRARNG).  

3.  On 2 October 1977, the applicant entered the Regular Army for active duty for training, and on 16 February 1978, he was honorably released from training.  He had 4 months and 15 days of net active service and he returned to the PRARNG. 

4.  His medical records while on active duty for training (ADT) from 
2 October 1977 to 16 February 1978 are not available.

5. On 27 May 1979, the applicant submitted a DA Form 2823 (Sworn Statement) to his PRARNG unit for an injury that occurred while on ADT which he signed that states, “That I am a member of HHG 2d Bn (105MM,T) 162d FA, attending AT-79 at Fort Picket, Virginia from 27May-9Jun79.  That on 5Jun79, while trying to hold up one of the pole[s] of a tent, same pole slid over my hand (right) causing a pain in my right hand.”  However, the applicant now claims the signature was not his and was falsified.   

6.  On 5 June 1979, while serving with the PRARNG he received a DD Form 689 (Individual Sick Slip) for pain on his right hand that he claims he received while on active duty for training.  He and was given light duty.

7.  A DA Form 2173 (Statement of Medical Examination and Duty Status), time/date 0830, 5 June 1979, which was completed by a physician, stated: 

* Item 11a (Medical Opinion): “was not under the influence”
* Item 11b (Individual): “was mentally sound”
* Item 11c (Injury): “is not likely to result in a claim against the government for future medical care”
* Item 11d (Injury): “was incurred in the line of duty”
* Item 12 (The Following Disability May Result): “Temporary”
* Item 16 (Date): “3 Aug 79”
* Item 17 (Attending Physician or Patient Administrator): “C____V___, CPT, FA, MC”
* Item 22 (Individual Was On): “Active Duty For Training”
* Item 30 (Details of Accident, Remarks): “While in special duties in the assembly of an officer tent (field area), I try to hold up one of the pole, causing a pain in my right hand, pain that results in a progressive and intensive pain as of this date” 
* Item 33 (Date): “3 Aug 79”
* Item 34 (Type Name and Grade of Unit Commander or Unit Adviser): “B_____D_ J_____CPT FA PRARNG”
* Item 23 (Hour and Date Training) - 23a (Began): “0001 27 May 79” – 23b (Ended) “2400 9 Jun 79”

8.  The applicant claims that the DA Form 2173 dated 3 June 1979 was falsified.

9.  On 3 August 1979, the applicant submitted a DA Form 2823 to his PRARNG unit for the injury that occurred while on ADT which he signed that stated the same thing as the 27 May 1979 sworn statement.  However, in this statement, he claims the signature was his.  

10.  The DA Form 2173 the applicant claims is the “good one” dated 
3 August 1979 has the following changes:

* Item 11b (Individual): “was not mentally sound”
* Item 11c (Injury): “is likely to result in a claim against the government for future medical care”
* Item 16 (Date): “17 November 1979”
* Item 23 (Hour and Date Training) - 23a (Began): “0001 27 May 79” – 23b (Ended) “2400 8 May 79”
* Item 30 (Details of Accident, Remarks): “While in special duties in the assembly of an officer tent (field area), I try to hold up one of the pole, causing a pain in my right hand, pain that results in a progressive and intensive pain as of this date” 
* Item 33 (Date): “27May79””
* Item 34 (Type Name and Grade of Unit Commander or Unit Adviser): “B_____D_ J_____CPT FA PRARNG”

11.  On 30 June 1983, he was honorably discharged with 6 years of net service.

12.  On 11 December 2013, the applicant submitted a letter to the PRARNG stating that someone falsified his official records and that the PRARNG has been fooling the military and the Pentagon by penciling out official records.  He implies that he should have been reclassified with a new military occupational specialty (MOS) and that he received a medical disability, but the PRARNG changed his military records to prevent him from receiving anything.  Furthermore, he states, the PRARNG created this turmoil and if nothing is done to undo the damage, he would go to the media.

13.  On 14 January 2014, the applicant submitted an incident report to the Cliffside Park Police Headquarters, in Cliffside Park NJ, stating he was in the PRARNG in 1979, was injured during a training exercise, but discharged from the PRARNG in 1983 and has not been able to keep a job due to his injury.  He claims that his discharge form was forged and because of that, he is unable to receive any medical benefits.  He states he went to the VA and they told him to file a report with the police department.  He was advised by the police department to respond back to the VA or contact a lawyer. 

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5-17 refers to Reserve component personnel ordered to ADT under Reserve Enlistment Program (REP). Commanders of training installations are authorized to release Reserve component personnel ordered to ADT under REP of 1963 upon completion of MOS training when training is completed prior to the period of time specified in ADT orders provided a minimum period of 4 months' ADT has been completed.  

15.  Chapter 3 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) contains the policy and outlines the standards for determining unfitness because of physical disability.  It states, in pertinent part, that the mere presence of an 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.  Paragraph 3-3b(1) states, in pertinent part, that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his/her office, grade, rank or rating.  

16.  Army Regulation 15-185 (ABCMR), paragraph 2-5 states, "The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence."


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention is that he should have been discharged for medical reasons.  

2.  In the absence of the applicant’s medical records and discharge paperwork, the discharge process must be presumed to have been in accordance with applicable law and regulations.  The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time and the rights of the applicant were fully protected throughout the separation process. There is no indication of procedural errors which would have jeopardized his rights.  

3.  The ABCMR is not an investigative body and therefore, presumes regularity based on the documents available.  Although the applicant presents several documents which he claims to be forgeries, even given the “good” documents, there isn’t enough evidence to show he had an unfitting condition at the time of his discharge that would warrant a medical discharge. 

4.  Additionally, there is no evidence that he was unfit for duty when he was on ADT or that he was unable to perform his MOS was he was discharged from the PRARNG.

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)                                         AR20110003975



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ABCMR Record of Proceedings (cont)                                         AR20140021618



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