IN THE CASE OF: BOARD DATE: 18 April 2012 DOCKET NUMBER: AR20110021085 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: The applicant requests his under honorable conditions discharge be changed to a medical discharge with retroactive back pay. 2. The applicant states that: a. while he was stationed at Fort Campbell, KY, he fractured his lumbar spine. It gave him all kinds of problems. He was sent to a medical review board, but they kept him in the hall. He never got to talk to them. A second lieutenant (2LT) presented his case without him. A few weeks went by and he received the general discharge. b. item 5c (Authority and Reason) of his DD Form 214 (Report of Separation or Discharge) does not show the authority and reason for his discharge. c. item 27 (Remarks) of the DD Form 214 fails to mention he graduated from Air Assault School in October 1976 at Fort Campbell, KY, d. his DD Form 214 shows he has a reentry (RE) code of RE-3. He should have been medically discharged. He is requesting this error be corrected and that he be made whole. 3. The applicant provides a copy of his DD Form 214. 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 16 June 1976. He completed training and was awarded military occupational specialty (MOS) 13B (Field Artillery Crewman). 3. A 23 June 1977, counseling record mentions that the applicant had a permanent profile for a bad back and that he wanted a chapter 5 discharge. Other counseling records mention he had a bad attitude and did not want to be reclassified into another MOS. 4. His DA Form 2-1 (Personnel Qualification Record) shows he was assigned to Fort Campbell, KY. Item 17 (Civilian Education and Military Schools) does not list the Air Assault School at Fort Campbell, KY. 5. On 29 August 1977, the applicant’s immediate commander notified the applicant that he intended to recommend his discharge from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-37, by reason of lack of motivation, poor attitude towards completing his commitment 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. 6. The applicant acknowledged notification of his proposed discharge from the Army. 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 enlistment 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. 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. 7. On 16 September 1977, the separation authority approved the applicant's discharge and directed that he receive a General Discharge Certificate. 8. The applicant was discharged accordingly. His DD Form 214 shows in: a. item 5c (Reason and Authority) paragraph 5-37, AR 63 5-200, b. item 10 (Reenlistment Code) RE-3; and c. item 18c (Total Active Service) 1 year, 3 months, and 11 days. 9. His medical records are not available for review. 10. Army Regulation (AR) 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 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. 11. AR 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. 12. AR 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. 13. AR 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. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his general discharge should be changed to a medical discharge because he had problems after he fractured his lumbar spine and was not allowed to appear before the medical review board. 2. The evidence of record shows the applicant demonstrated that he could not or would not meet acceptable standards required of enlisted personnel because of his inability to meet acceptable standards for continued military service. Accordingly, his immediate commander initiated separation action against him. More importantly is the fact that he voluntarily consented to his discharge. 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 therefore 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 available 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 retirement or separation. 5. The RE code 3, establishing his enlistment/reenlistment ineligibility without waiver, was correctly entered on his DD Form 214 in accordance with governing regulations. There is no apparent basis for removal or waiver of the applicant’s disqualification that established the basis for the RE code 3. 6. There is no available evidence showing the applicant completed Air Assault training at Fort Campbell. KY. 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) AR20110020185 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110021085 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1