IN THE CASE OF:	  

		BOARD DATE:	    27 October 2015

		DOCKET NUMBER:  AR20150001581 


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 a medical discharge.

2.  The applicant states:

   a.  At the time of his discharge he was on a permanent medical profile for issues with his legs and lower back.  He was granted a family hardship discharge and he was assigned a reenlistment (RE) code of RE-3.  He should have received treatment for his medical issues prior to his discharge, but he was discharged while in a medically unfit status.  It is the obligation of the service to ensure that service members are discharged in a full-duty status or at a minimum in a stable condition with access to follow-up care after their separation from the service. 

   b.  In 1967, he was drafted three times.  The first two times he was advised that he was too overweight to be drafted.  However, on the third time the doctor in charge advised him that he would be drafted into the Army, the Army would trim the excess off, and he shouldn't worry about being overweight.  During basic combat training (BCT) they were required to run five miles every morning before they were allowed to eat breakfast.  Because he was overweight he could not complete the run in time with the rest of the company which resulted with the entire company only being allowed to eat breakfast in a few short minutes rather than the full allotted time to eat.  


   c.  The drill instructor forced the entire company, several times at 0200 and 0300 hours, to perform the "low crawl" where the individuals had to get down on their belly and actually crawl to move from point to point.  Due to his being overweight he couldn't get down in that position because his legs and body wouldn't allow him to obtain that position.  During one exercise the drill instructor kicked him in the back forcing him into the "low crawl" position.  His back immediately began hurting due to being kicked.

   d.  During his entire BCT, his legs would swell up badly at night after all the daily training he had completed.  He complained several times to the first sergeant about his legs swelling and back pain.  The first sergeant witnessed his legs swelling one night and he requested to go to sick call the next morning to have them checked.  The next morning he went to sick call, x-rays were taken, and nothing was discovered wrong with his legs.  During BCT he continued to go to sick call five or six times and they still found nothing.  He was very upset with the doctor.  He explained to a senior doctor that he had been on sick call five or six times during BCT because his legs swelled up badly at night, but appeared to be alright during the day when he went to sick call.

   e.  This doctor thought about his remarks and then ordered the original doctor to order new x-rays and to have them taken a certain way.  This time the x-rays showed hairline fractures on both of his tibias in the legs.  After completion of BCT, he was sent home for 2 weeks awaiting other orders.  After 2 weeks at home he received orders to report to Fort Knox, KY.  When he reported to Fort Knox, he was assigned a permanent profile with an "absolutely no duty of any kind until further notice" limitation.  At this time, one of the company officers advised him to apply for a hardship discharge.  This made him wonder why he wasn't given a medical discharge instead of being forced to apply for a hardship discharge.

   f.  The Army didn't investigate the actual medical problems that he was experiencing with his legs and back for a second time after he completed BCT.  He didn't know that he was eligible for a hardship discharge and asked the officer about that.  The officer asked if he had any reason for a hardship discharge.  He told the officer that his mother was a mute and deaf person and the officer advised him to apply for a hardship discharge on that basis.

   g.  He called his wife and told her to go to the Red Cross for the paperwork to file for a hardship discharge for him due to his mother being a mute and deaf person.  The Red Cross advised his wife that he couldn't receive a hardship discharge on those grounds because his mother didn't live with him at that time.  His wife insisted the Red Cross complete the paperwork anyway and send it to his company at Fort Knox.  When the Army received the paperwork from the Red Cross he was immediately recommended for a hardship discharge.  However, he was held up for 2 months before receiving this discharge because he had to receive all of his military shots again before he was finally discharged.

	h.  Some 30 years later when he applied for veteran medical disability, the Army requested his civilian medical records as proof he had been seen by doctors for his legs and back after his discharge.  He sent the Army the requested medical records.  He was advised by Dr. Bxxx (a genetic doctor) with the Fullerton Genetics Clinic in NC that he had myotonic dystrophy and that could have contributed to him being overweight during BCT.

3.  The applicant provides copies of the following:

* Standard Form (SF) 513 (Clinical Record – Consultation Sheet)
* four SFs 600 (Health Record – Chronological Record of Medical Care)
* DA Form 8-274 (Medical Condition – Physical Profile Record)
* SF 88 (Report of Medical Examination)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

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 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's military records show he enlisted in the Florida Army National Guard (FLARNG) on 4 May 1961.  He entered on active duty for training (ACDUTRA) on 2 August 1961.  He completed training and was awarded military occupational specialty (MOS) 630.00 (automobile maintenance helper).  He was released from ACDUTRA on 1 February 1962 and returned to the FLARNG. 

3.  His records contain an SF 88 showing he underwent a pre-induction physical examination on 7 March 1968 and was found qualified for induction.

4.  He was inducted into the Army of the United States (AUS) on 1 July 1968.  His DD Form 47 (Record of Induction) shows in:

* Section III (Medical Determination) – he was on:

* 7 March 1968 – assigned a physical profile of "1-1-1-1-1-1-A"
* 20 March 1968 – reevaluated and assigned a physical profile of "1-1-1-1-1-1-A"
* 28 May 1968 – underwent a physical reevaluation and was assigned a physical profile of "1-1-1-1-1-1-A"

* Section VII (Determination at Pre-Induction Examination) – he was found acceptable for induction into the Armed Forces

5.  He provided copies of the following:

   a.  An SF 513 showing on 5 July 1968 medical treatment was requested for chronic low back and leg pain.  An evaluation was requested, the x-rays were negative, and he was prescribed physical therapy for back exercises.
   
   b.  An SF 600 showing between 5 and 15 July 1968 he received medical care for a back injury and swelling of both legs.  On the form he stated that he had injured his back about 3 years before and had been receiving treatment and medication since that time.  About 1 month ago he had begun an exercise program for the lower back before entering the service.  

   c.  A DA Form 8-274, dated 5 August 1968, showing he was medically qualified for duty with limitations of no crawling, stooping, running, jumping, and prolonged standing or marching for 3 weeks.  The form also stated there were possible stress fractures of the tibias, both legs.  

   d.  Three SFs 600 showing between 15 August and 16 September 1968 he received medical treatment for persistent low back pain radiating to his left leg.  An orthopedic consult was requested.  Initiation of an administrative discharge was requested.

6.  Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) shows:

* he completed BCT at the U.S. Army Service Training Center, Fort Gordon, GA, in 1968
* he was assigned to Fort Knox, KY on 1 November 1968 in a military occupational specialty (MOS) 52F (Electrician) position
7.  He also provided a copy of an SF 88 showing he underwent a physical examination on 29 November 1968 for the purpose of a hardship discharge and he was found qualified for separation.

8.  His record is void of the complete facts and circumstances surrounding his discharge; however, his records contain the following:

   a.  A DD Form 214 showing he was honorably released from active duty on 3 December 1968 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training).  He was credited with completing 5 months and 2 days of active service.  The DD Form 214 lists in item 11c (Reason and Authority) – Army Regulation 635-200 (Personnel Separation – Enlisted Personnel), Expiration of Term of Service (ETS), Separation Program Number (SPN) "201."

   b.  Letter Orders E, issued by the U.S. Army Administrative Center on 18 December 1968, honorably discharged him from the USAR Control Group, under the provisions of Army Regulation 135-91 (ARNG and Army Reserve Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), paragraph 18a(2), by reason of hardship.

9.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation provided for the discharge or release from active duty upon completion of periods of active duty or ACDUTRA. Paragraph 5-9 of the regulation provided for personnel who did not meet the medical fitness standards for enlistment or induction.  An individual was eligible for discharge if a medical board found the individual had a medical condition which would have permanently disqualified him for entry in the military service had it been detected at that time, and did not disqualify him from retention in the military service under the provisions of chapter 3, Army Regulation (Standards of Medical Fitness) 40-501.

10.  Army Regulation 135-91, in effect at the time, set the policies governing the various types of service obligations and participation requirements.  The regulation stated Reserve Components members with statutory service obligations whose participation was unsatisfactory could be ordered to active duty for 24 months, less any period of active duty or active duty for training previously performed.  Paragraph 18a(2) provided for a separation for hardship.

11.  Army Regulation 40-501, chapter 3, in effect at the time, provided that for the separation of an individual found to be unfit by reason of physical disability, he/she must be unable to perform the duties of his officer, grade, rank, or ratings. Members with conditions, as listed in this chapter, were considered medically unfit for retention on active duty and were referred for disability processing.

12.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), in effect at the time, covered eligibility criteria, policies and procedures for enlistment and processing into the Regular Army and the USAR.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including Regular Army RE codes.  An RE code of RE-3 was entered when a Soldier's record indicated that he or she was ineligible for or otherwise been denied immediate reenlistment unless a waiver was granted.

13.  Army Regulation 635-5 (Separation Documents), in effect at the time, governed the preparation of the DD Form 214.  It stated the DD Form 214 would be prepared for all personal at the time of their retirement, discharge, or release from active duty.  The regulation stated:

* Item 11c – would indicate the authority for transfer or discharge followed by the SPN and descriptive reason for transfer or discharge
* Item 15 – would indicate the applicable code to denote eligibility or ineligibility for reenlistment

14.  At the time the applicant was discharged, Appendix A of Army Regulation 635-5 stated that SPN 201 applied to persons who were separated under the provisions of Army Regulation 635-200, by reason of ETS (included personnel on ACDUTRA as initial trainees).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the complete facts and circumstances surrounding his release from active duty and hardship discharge.  However, the available evidence shows he was inducted into the AUS on 1 July 1968 after being found qualified for induction.  During BCT he sought and received medical treatment for low back and leg pain.  An SF 600, dated 5 August 1968, stated he had possible stress fractures of the tibias in both legs.  Sometime in September 1968, initiation of an administrative separation was requested.  

2.  Evidence shows he had completed his initial training on active duty and was assigned to an MOS 52F position at Fort Knox on 1 November 1968.  A DD Form 214 shows he was released from the AUS on 3 December 1968 and transferred to the USAR Control Group (Annual Training).  Orders show he was honorably discharged from the USAR on 18 December 1968 by reason of hardship.
3.  Evidence shows he had a problem with his back prior to his induction; however, he was found to be medically qualified for duty with limitations during his period of active duty.  Further, the available record is void of any evidence he had a medical condition which permanently disqualified him for entry in the military service, or that he did not qualify for retention, or that he qualified for a medical discharge at the time of his separation in December 1968.  

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)                                         AR20150001581





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ABCMR Record of Proceedings (cont)                                         AR20150001581



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