BOARD DATE: 13 November 2014 DOCKET NUMBER: AR20140004508 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, in effect, correction of his records to show he was honorably discharged for medical reasons. 2. The applicant states he sustained injuries to his right and left knees while on active duty and he received treatment for these injuries also while on active duty. He still requires treatment for those injuries. 3. The applicant provides selected chronological records of medical care, DD Form 214 (Report of Separation from Active Duty), and recent Department of Veterans Affairs (VA) rating decision. 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's records show he enlisted in the Regular Army for a period of 3 years on 22 November 1978. He was assigned to Fort McClellan, AL, for completion of one station unit training. 3. On or about 29 November 1978, following completion of basic combat training, he was assigned to Company A, 10th Military Police (MP) Battalion for completion of advanced individual training in military occupational specialty (MOS) 95B (MP). 4. On 25 January 1979, he hurt his knee during training. He was seen at the troop medical clinic where he related having had a transmission falling on his knee 4 years earlier. He was treated with medication and referred to the orthopedic clinic for evaluation. 5. On 28 February 1979, he jammed his left foot while running and his body fell forward. He was seen on sick call and his x-rays were negative. He was also referred to the orthopedic clinic for further evaluation. 6. On 8 March 1979, he departed his unit in an absent without leave (AWOL) status but he returned to his unit on 19 March 1979. 7. On 21 and 23 March 1979, he was seen at the troop medical clinic for a follow-up for mild tenderness of the tibia and shin splints. He was also told of the beginning of a bone cyst. He was given medications and was instructed to follow-up. 8. On 23 March 1979, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 8 to 19 March 1979. 9. On 26 March and 1 April 1979, he was again seen by medical authorities for a follow-up and on 5 April 1979, he was issued a temporary physical profile. The profile shows he was determined medically fit with limited duty due to chrondromalacia patella. 10. On 1 May 1979, he again departed his training unit in an AWOL status but he returned to military control on 14 May 1979. 11. On 12 May 1979, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 1 to 14 May 1979. 12. His records reveal a history of negative counseling and/or witness statements by members of his chain of command for various infractions including: * personal problems and desire to get assigned close to home * failing to respond to counseling and rehabilitative efforts * immaturity, lack of motivation, and disregard to authority * lack of self-discipline and repeated AWOL * negative attitude and need for constant supervision * being disrespectful toward a sergeant * evading training by any means possible * poor attitude toward the Army and his job * constant need for supervision * performing the very minimum expected of a Soldier * stating he was going to go AWOL again 13. On 25 April 1979, he was counseled and informed he had been eliminated from attendance at the Basic Law Enforcement Program (MOS 95B) due to exceeding the required training time allowed in training. 14. On 23 May 1979, the applicant's immediate commander advised him of his intent to initiate separation action against him under the provisions of paragraph 5-31 of Army Regulation 635-200, under the Expeditious Discharge Program (EDP). The immediate commander recommended an Honorable Discharge Certificate and stated that: * the applicant has displayed a totally unacceptable standard of conduct for a Soldier in the Army * he had gone AWOL on two occasions and consequently missing shipment to different MOS producing schools which was indicative of his lack of motivation and disregard for authority * his irrational behavior and unwillingness to adjust were responsible for his failure at MP School and it was unlikely he would become a productive Soldier 15. On 24 August 1979, the applicant acknowledged notification of the proposed separation action. He subsequently consulted with legal counsel. He acknowledged that: * he had been advised of the basis for the contemplated separation action under the provisions of paragraph 5-31, Army Regulation 635-200 * he had been advised of 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 separation action and declined to make a statement in his own behalf * he further acknowledged he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life 16. His immediate commander initiated separation action against him under the expeditious discharge program. 17. On 31 May 1979, he underwent a command-referred mental status evaluation at the Community Mental Health. During the interview, he stated that he wanted to get out of the Army to work out his personal problems. He also reported that he would not hesitate to go AWOL again if not discharged. The examining official opined the applicant would most likely continue acting out his behavior until discharge is obtained and psychiatrically cleared him for administrative actions deemed appropriate by his chain of command. 18. On 25 June 1979, the applicant's intermediate commander concurred with the recommendation to discharge the applicant. He stated: * the applicant's problems were so strong that they prevented him from performing in an acceptable manner as a Soldier * he had legal problems with his immediate family that was causing a great deal of turmoil in his life * his record of AWOL was indicative of his lack of rational thinking * there was no way he could turn himself around at that stage of his life and become a productive Soldier * his continued presence in the Army would lead only to additional problems for himself and the unit 19. Consistent with the chain of command's recommendations, the separation authority waived further rehabilitation requirements and approved the applicant's discharge under the provisions of Army Regulations 635-200, paragraph 5-31, and directed that he be issued an Honorable Discharge Certificate. On 2 July 1979, the applicant was discharged accordingly 20. His DD Form 214 shows he was honorably discharged under the provisions of Army Regulations 635-200, paragraph 5-31, EDP, due to failure to maintain acceptable standards for retention. He had completed a total of 6 months and 17 days of creditable active military service and he had 24 days of lost time. 21. Also on 2 July 1979, the applicant was issued a memorandum advising him that: * the reason for his separation was his failure to maintain acceptable standards * the regulatory authority for his separation was paragraph 5-31 of Army Regulation 635-200 * he was ineligible to reenlist without a waiver 22. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 23. His service medical records are not available for review with this case. Additionally, based on the medical documents he submitted: * there is no indication in the available service medical records that he suffered an injury or an illness that rendered him unable to reasonably perform the duties of his grade or military specialty * there is no record of a physical profile of a permanent nature * there is no indication he was diagnosed with a condition that failed retention standards, rendered him unfit, or warranted processing through the Physical Disability Evaluation System (PDES) 24. Army Regulation 635-200, in effect at the time, set for 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. 25. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness). 26. Army Regulation 635-40 states 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. 27. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent. DISCUSSION AND CONCLUSIONS: 1. The applicant’s contention that his discharge should be changed to a medical discharge was carefully considered but was found to lack merit. 2. The available evidence shows the applicant continually displayed a lack of self-discipline and motivation and inability to conform to military rules. Accordingly, his chain of command initiated separation action against him and he voluntarily consented to discharge under the expeditious discharge program. 3. His separation was accomplished in compliance with applicable regulations with no evidence of procedural errors which would have jeopardized his rights. The type of discharge directed and the reason for separation were appropriate considering all the facts of the case. Furthermore, not only did he consent to this discharge, he was advised in writing of the reason and the authority for his discharge. 4. With respect to the medical discharge: a. There is no evidence in his records and he provided none to show he suffered an illness or an injury that rendered him unable to reasonably perform the duties required of his grade and/or military specialty. He appears to have this common misconception that if he was injured or gotten sick, he would be automatically entitled to a medical discharge. b. The Army must find that a Soldier is physically unfit to reasonably perform the duties associated with the Soldier's rank, grade or specialty and assigned an appropriate disability rating before the Soldier can be medically separated. A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the PDES. In this case the applicant failed to produce any evidence to substantiate a medical discharge. 5. After a comprehensive review of his records and the documents he provides, no evidence was found to support a medical discharge. Therefore, he is not entitled to 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) AR20140004508 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140004508 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1