ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 April 2019 DOCKET NUMBER: AR20160012909 APPLICANT REQUESTS: correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically separated vice honorably discharged. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * personal statement FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he had a medical problem and instead of being medically separated he was honorably released from active duty. He believes with a medical separation he would have been entitled to some form of pension. He just recently learned of this benefit and is now making a claim. 3. The applicant enlisted in the Regular Army on 10 November 1976. At the time of his entrance onto active duty he was found medically qualified for entrance with no duty limitations or duty restrictions. He had no limiting psychical profile as shown on his DD Form 1966 (Application for Enlistment – Armed Forces of the United States) item 19 (Medical Results) with a profile rating of all ones [PULHES 111111]. 4. A DA Form 3349 (Physical Profile) is filed in his personnel record showing as of 30 November 1976, while in a trainee status, he received a "P3" rating for his lower extremities due to Achilles tendonitis. His restrictions included no running, jumping, or marching. These restrictions were temporary and not to exceed 90 days. 5. The applicant had a history of being counseled by his chain of command for – * lack of military discipline and self-control on multiple occasions * no respect for military authority * failure to follow the orders of his superiors * disruptive to his peers by causing fights in the barracks * failure to follow military regulations concerning wear and appearance of the Army uniforms; training regulations * disruptive attitude 6. On 8 December 1976, he was counseled and advised in writing that he could be separated as a trainee for failure to comply with the instructions of his superiors, a negative attitude towards training and the military. He was informed he lacked self- initiative, self-motivation and self-discipline to comply with Army regulatory standards. He was advised he could be separated under the provisions of Army Regulation 635- 200 (Personnel Separations – Enlisted Personnel) paragraph 5-39. He was informed he would receive an Honorable Discharge Certificate. However, based on his length of service he would be ineligible for Veterans Administration benefits as well as other Veterans benefits authorized by Federal and State laws normally associated with completion of an honorable contractual term of service. He was informed he had the right to submit a rebuttal statement to the discharge authority or waive those rights. Finally he was informed counsel would be made available to him, if desired. 7. Concurrently on 8 December 1976, he acknowledged receipt of the proposed notification of discharge under the provisions of the Trainee Discharge Program [Army Regulation 635-200, paragraph 5-39]. He indicated in writing – * he did not desire counsel to assist him * he did not desire to make a statement on his behalf * he did not desire a separation medical physical, if the discharge was approved 8. On 9 December 1976, he received a second physical profile for Achilles tendinitis which limited him because he could not run or march and he was authorized to wear low quarter shoes instead of basic combat boots for 10 days. 9. The applicant’s immediate and intermediate commanders recommended approving the administrative discharge of the applicant under the provisions of the Trainee Discharge Program. The intermediate commander stated the applicant lacked the self- discipline to become a productive Soldier and was resentful of persons in positions of authority. He was not able to get along with his peers both in the barracks and in a training environment. He received two Article 15s under the provisions of the Uniform of Code of Military Justice for violating regulations. 10. On 17 December 1976, the approval authority approved the applicant's discharge under the provisions of the Trainee Discharge Program. 11. On 4 January 1977, Orders 4-388 were issued by Headquarters, U.S. Army Training Center and Fort Dix, Fort Dix, New Jersey wherein the applicant was ordered duly discharged. 12. On 12 January 1977, the applicant was discharged from the Regular Army after completing 2 months and 3 days of active duty service. In pertinent part, his issued DD Form 214 contains the following entries: * item 9c (Authority and Reason) – Army Regulation 635-200, paragraph 5-39; Separation Program Designator (SPD) "JEM" * item 16 (Primary Specialty Number and Title) – 09B00 Trainee 13. On 7 March 2019, the Army Review Boards Agency (ARBA) senior medical advisor provided an advisory opinion. The advisory found the available documentation showed the applicant met medical retention standards for all medical conditions and there was no indication for physical disability evaluation system processing. There is no available evidence supporting a change to his narrative reason for separation or his type of discharge. A copy of the complete medical advisory was provided to the Board for their review and consideration. 14. The applicant was provided a copy of the advisory opinion on 12 March 2019 and given an opportunity to submit comments. He did not respond. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The Board agreed the applicant was medically evaluated during his period of service; however, there is no evidence his medical concerns were severe enough to receive a permanent 3 Profile or higher requiring medical boarding. Furthermore, the applicant’s medical concern (Achilles tendonitis) did not mitigate the applicant’s behavior and offenses that led to his separation from the Army. There is no evidence of a medical disability or condition that would support a change to the character and/or reason for the discharge in this case. The VA properly provided him support and benefits for service connected medical concerns. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 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. ADMINITSTARTIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 40-501 (Medical Services – Standards of Medical Fitness) governs the medical fitness standards for enlistment, induction, and appointment including officer procurement programs. It also governs medical examinations and the physical profiling of Soldiers. a. At the time paragraph 3-3b(1), as amended, provided that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, or rating and the physical conditions must have been incurred while entitled to base pay. b. Chapter 7 (Physical Profiling) provides the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P- physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric. Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment. 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 2-2b, then in effect, provided that when a member was being separated by reason other than physical disability, his continued performance of duty created a presumption of fitness which could be overcome only by clear and convincing evidence that he was unable to perform his duties 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. 4. Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. Paragraph 5-39 contained the policy for separation under the provisions of the Trainee Discharge Program. It stated, in pertinent part, that commanders may expeditiously discharge soldiers who lack the necessary motivation, discipline, ability, or aptitude to become a productive Soldier. These soldiers must have voluntarily enlisted in the Regular Army, Army National Guard, or United States Army Reserve, and be in either basic combat training or advanced individual training, and could not have completed no more than 179 days active duty or initial active duty for training on their current enlistment by the date of discharge. 5. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 6. Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay. //NOTHING FOLLOWS//