IN THE CASE OF: BOARD DATE: 26 May 2016 DOCKET NUMBER: AR20150011070 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x___ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 26 May 2016 DOCKET NUMBER: AR20150011070 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 26 May 2016 DOCKET NUMBER: AR20150011070 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 DD Form 214 (Report of Separation from Active Duty) to show he was medically discharged. 2. The applicant states: * he believes his DD Form 214 should show he was separated due to medical reasons * item 8c (Authority and Reason) of his DD Form 214 should be corrected to show he was separated for medical disabilities * he believes his separation was due to his feet and legs that were injured during a required forced march in basic training 3. The applicant provides: * DD Form 214 * service medical records 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 military records are not available for review. The National Archives and Records Administration reported no records on file. This case is being considered based on the evidence provided by the applicant. 3. He provided a Standard Form 88 (Report of Medical Examination), dated 2 May 1977, which shows his feet were rated abnormal for poor arch support and he indicated he could run without pain. 4. He provided a Standard Form 93 (Report of Medical History), dated 2 May 1977, which shows he reported he had foot trouble. 5. The available evidence shows he enlisted in the Regular Army on 29 May 1977. 6. He provided a clinical record, dated 14 June 1977, showing he was treated for bilateral feet pain. This record states he had trouble in civilian life and used a Thomas heel (corrective shoe) as a child. 7. He provided a medical record, dated 27 June 1977, showing he complained of right thigh pain after a 14-mile march and was diagnosed with right muscle strain. This record indicates there was no trauma involved. 8. He provided service medical records, dated June and July 1977, showing he was treated for bilateral feet pain (childhood flat feet), ankle pain, foot strain, and muscle strain. 9. His records are void of the specific facts and circumstances surrounding his final discharge action. His DD Form 214 shows he was honorably discharged on 16 August 1977 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-39 (Trainee Discharge Program (TDP)). He completed a total of 2 months and 18 days of creditable active service. He was assigned a separation program designator (SPD) code of JEM. 10. There is no evidence showing he was diagnosed with any unfitting medical condition prior to his discharge. 11. There is no evidence showing he petitioned the Army Discharge Review Board for a change in the reason and authority for his discharge. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army. Paragraph 5-39 in effect at the time governed the TDP. It provided for the separation of service members who lacked the necessary motivation, discipline, ability, or aptitude to become productive Soldiers or who failed to respond to formal counseling. a. The service member must have: * voluntarily enlisted * been in basic, advanced individual, on-the-job, or service school training prior to award of a military occupational specialty * not completed more than 179 days of active duty on his or her current enlistment by the date of separation b. Soldiers could be separated when they demonstrated that they: * were not qualified for retention due to failure to adapt socially or emotionally to military life * could not meet minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline; or demonstrated character and behavior characteristics not compatible with satisfactory continued service 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. The unfitness must be of such a degree that a Soldier is unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his or her employment on active duty. 3. Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of disability incurred while entitled to basic pay. 4. Army Regulation 635-5-1 (SPD Codes), in effect at the time, prescribed the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. SPD code JEM applied to Soldiers being discharged under Army Regulation 635-200, paragraph 5-39, for marginal or non-productive performance (TDP). DISCUSSION: 1. The applicant contends he injured his feet and legs during a forced march in basic training and he should have been medically discharged. The medical evidence he provided shows he was treated on 27 June 1977 for a right muscle strain after a 14-mile march. This medical record indicates there was no trauma involved. 2. There is no evidence showing he was unable to perform his military duties due to a medical condition. 3. In the absence of evidence to the contrary, it must be presumed that his separation processing was administratively correct and in conformance with applicable regulations. Without the discharge packet to consider, it is presumed the authority and reason for his separation was commensurate with his overall record of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011070 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011070 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2