BOARD DATE:	  16 July 2015

		DOCKET NUMBER:  AR20150001664 


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 reconsideration of his earlier request for correction of his records to show he received a medical discharge vice his current general discharge.  He also requests a personal appearance.

2.  The applicant states he requested a medical discharge because he had a permanent profile.  He was unable to work in his military occupational specialty (MOS) because of his line of duty hospitalization.  He did not have any court-martial convictions or Article 15s.  His commander documented, on three occasions, that he did not meet the criteria for a chapter 5, general under honorable conditions.  Someone in the chain of command under his company commander removed his records and thinned out his chart to include his Air Assault School completion documents.  Additionally, item 27 (Remarks) of his DD Form 214 (Report of Separation from Active Duty) does not show he graduated from Air Assault School at Fort Campbell, KY.  His DD Form 214 shows he was assigned reentry (RE) code 3 when he should have been medically discharged.  

3.  The applicant provides:

* DD Form 214
* Air Assault Card
* separation packet
* DA Form 1571 (Request for Tuition Assistance General Educational Development Program) 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110021085, on 18 April 2012.

2.  The applicant does not meet the two-tiered criteria for a request for reconsideration in that his request was neither received within one year of the Board's original decision nor does it contain any new documentary evidence.  However, he provides a new argument and raises the issue of a personal appearance hearing.  As such, his request will be considered by the Board. 

3.  The applicant enlisted in the Regular Army on 16 June 1976.  He completed basic combat and advanced individual training and he was awarded MOS 13B (Field Artillery Crewman).  

4.  His DA Form 2-1 (Personnel Qualification Record) shows he was assigned to Battery A, 3rd Battalion, 319th Field Artillery, Fort Campbell, KY.  Item 17 (Civilian Education and Military Schools) of his DA Form 2-1 does not list completion of the Air Assault School at Fort Campbell, KY.

6.  His service records show he was frequently counseled by his chain of command.   His service record contains a counseling statement, dated 23 June 1977, that states the applicant had a permanent profile for a bad back and that he wanted a chapter 5 discharge.  Other counseling records mention:

* his persistence to receive a chapter 5 discharge and the development of an attitude in pursuing his chapter 5 discharge 
* he did not want to be classified into another MOS and displayed a poor attitude toward completing his obligations in the Army
* he indicated he had hyperventilation syndrome that was causing him to have bad health
* he did not to wait for the reclassification board; he had made up his mind and he did not want anything else other than separation 
* the initiation of a bar to reenlistment against him 

7.  On 29 August 1977, the applicant’s immediate commander notified the applicant of his intent to recommend his discharge from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-37, for lack of motivation and a poor attitude towards completing his commitments in the military.  The immediate commander noted 
that due to the applicant's permanent profile he was not able to work in his MOS and he (the applicant) had expressed a strong desire not to function in another MOS in the military.  The commander recommended the applicant receive a General Discharge Certificate. 

8.  On 29 August 1977, the applicant acknowledged receipt of the notification of his proposed separation from the Army prior to his expiration of his term of service.  He acknowledged he had the opportunity to consult with legal counsel and he was advised of the basis for the contemplated separation from the Army, the effect on future enlistments in the Army, the possible effects of a general discharge, and of the procedures and rights that were available to him.  He voluntarily consented to this discharge (emphasis added).  The applicant further acknowledged that he understood that if he were issued a general discharge he could expect to encounter substantial prejudice in civilian life.  He elected not to submit a statement in his own behalf.

9.  On 16 September 1977, the separation authority approved the applicant's discharge under the provisions of paragraph 5-37 of Army Regulation 635-200 and directed that he receive a General Discharge Certificate.  The applicant was discharged accordingly on 26 September 1977. 

10.  The DD Form 214 he was issued shows he was discharged with an under honorable conditions (general) characterization of service.  He completed 1 year, 3 months, and 11 days of active service.  His DD Form 214 also shows in: 

* item 5c (Reason and Authority) paragraph 5-37, Army Regulation 635-200
* item 10 (Reenlistment Code) RE-3
* item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) does not show the Air Assault Badge
* item 27, individual requests a copy of the DD Form 214 

11.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitation.

12.  Although he submitted a Fort Campbell Air Assault Card, nothing in his records (such as a memorandum, endorsement, certificate of training, orders) shows he attended and completed Air Assault School. 

13.  His service medical records are not available for review with this case.  Nothing in his available official records shows:

* he had an injury that failed retention standards and/or was found unfitting 
* he was unable to reclassify and work in a different MOS 
* he was issued a physical profile of a permanent nature that prevented him from performing the duties required of his former grade or military specialty
* he was found medically unqualified for separation in 1977
* he suffered an injury or an illness that would have warranted his referral to the Physical Disability Evaluation System (PDES)

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The pertinent paragraph in chapter 5 provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential may be discharged under the expeditions discharge program (EDP).  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge.  Issuance of an honorable discharge certificate was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade, and general aptitude.  A general discharge is a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEB). Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

16.  Army Regulation 635-40, paragraph 2-2b(1) then in effect, provided that when a member was being separated by reasons other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she was scheduled for separation or retirement created a presumption that he or she was fit.  This presumption could be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

17.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.  RE code 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.  

18.  Army Regulation 600-8-22 (Military Awards) states award of the Air Assault Badge requires satisfactory completion of an air assault training course according to the U.S. Army Training and Doctrine Command standardized Air Assault Core Program of Instruction, or completion of the standard Air Assault Course while assigned or attached to the 101st Airborne Division (Air Assault) after 1 April 1974.  Badges were to be announced in orders by the appropriate issuing authority.

19.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 of this regulation contains guidance on the preparation of the DD Form 214.  Item 27 shows formal in-service training courses completed during the period covered by the DD Form 214 with no requirement to list combat skills training.

20.  Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice. The ABCMR will decide cases on the evidence of record.  It is not an investigative body. The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

2.  The available evidence of record shows the applicant demonstrated that he could not or would not meet acceptable standards of military conduct required of enlisted personnel because of his lack of motivation, poor attitude and unwillingness to train in a different MOS.  Accordingly, his immediate commander initiated separation action against him and it was approved by his superior commander.  In the processing of his separation, he voluntarily consented to his discharge and consistently stated he did not want to remain in the Army and retrain into a different MOS.  

3.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.  Based on his overall record, the applicant's service does not meet the standards of acceptable conduct of duty for Army personnel. 

4.  There is no evidence showing the applicant had any medical condition incurred while entitled to receive basic pay which was so severe as to render him medically unfit for retention on active duty.  Because the applicant's medical condition was not medically unfitting for retention at the time of his release from active duty there was no basis for a medical separation.

5.  There is no available evidence showing the applicant completed Air Assault School at Fort Campbell, KY and was awarded the Air Assault Badge upon completion of such training.  While the applicant provided a card that shows he trained in air assault fundamentals, there is insufficient evidence to support this fact in his available record.  As such, it is insufficient as a basis for correcting his record.    

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 to amend the decision of the ABCMR set forth in Docket Number AR20110021085, dated 18 April 2012.  In addition, the request for a personal appearance hearing is denied because sufficient evidence was found in his record for the Board to render a fair and impartial decision. 



      _______ _   _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)                                         AR20150001664



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ABCMR Record of Proceedings (cont)                                         AR20150001664



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