ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  16 July 2019

	DOCKET NUMBER:  AR20170002757


APPLICANT REQUESTS: 

* in effect review of discharge process
* personnel appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* self-authored 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 that he enlisted in the U.S. Army in November 1973 in order to seek a better future for himself and his family.  His goal was to make the military a career and to retire someday.  Basic combat training was his chance to prove that he was ready for the military.  He always followed the chain of command and did everything that was asked of him.  He really wanted to impress his drill sergeants, to be the best and perform to the best of his ability. 

	a.  About 3 weeks into his training, he was injured on the obstacle course when he hit the right side of his head.  He became unconscious for a few seconds and when he came to, his drill sergeants were asking him if he was fine.  He told his drill sergeant that he was fine because he want to seem strong and to impress others.  After the injury he had headaches and dizziness which lasted for a few weeks.  He was hospitalized twice, but received no treatment.  After his injury he noticed that his drill sergeants were not treating him in the same manner as before his injury.  His drill sergeants began to slap him on the back of his head for anything that he would do.  At the time, he thought it was to make him tougher.  He was not allowed to participant in the gas chamber and other training.
	b.  A few weeks later he was called into Captain X__’s office, who informed the applicant that he was being discharged from the Army.  He was told that his characterization of service would be honorable due to his conduct.  He told his commander that he did not want to be discharged from the Army and wanted to continue to serve.  He plead with his commander, but he was told that he was not needed at that time and the decision was final.  He then requested to speak with a chaplain.  When he met with the chaplain he asked the chaplain if he could find out why he was being discharged.  The chaplain went to speak with the captain and afterwards told the applicant that there was nothing that could be done about the discharge and that he was going home.

	c.  He returned to the barracks and gathered his belongings, when he was told by a sergeant that he would have to turn in his gear.  He was wearing his dress uniform when he turned in this gear and he was then told that he would also have to turn in the dress uniform.  He stated that he was honorably discharged and that he earned the uniform.  He was told that he would have to turn in the uniform and that he could buy clothing at the Post Exchange.  He felt humiliated and discriminated against.  When he arrived at the airport, he noticed that other trainees were wearing their dress uniform and that he was the only Mexican American that was being discharged.

	d.  A few years after he was discharged from the Army he attempted to enlist into the U.S. Marine Corps (USMC) and was initially accepted.  When the USMC obtained a report from the Army they apologized and thanked him for his efforts in applying.  He felt discriminated against again.  The Army knew of the applicant’s accident in basic training but they washed their hands of it and it appears that they erased his medical records of the incident.  He continued to have headaches and dizziness and he became aggressive and suffered from depression, which his wife dealt with for 43 years. 

	e.  The injustice of his discharge has affected his entire life.  He was not able to qualify for service connected Veteran Administration (VA) benefits because he was not in the Army for more than 90 days, even though he was injured in basic training.  The VA advised him that he applied and was denied a pension in 1974, but he never applied for it in the past.  In 2012, when he was going through a second surgery a social worker advised him to apply for VA health care, which he did in December 2013.  The VA advised him that there was no records of the injury in basic training, but they did have a records where he applied for benefits in 1974.  He also applied for social security disability benefits but was denied four times due to an insurance issue.

	f.  He is 60 years of age, disabled and legally blind.  He and his family have been in financial hardship for 5 years, he has tried many resources to maintain his household.  To include many community resources and a VA social worker.  He is at a loss and has come across many road blocks.  He requests the Board to hear his story and assist if there is anything that can be done.


3.  A review of the applicant’s service records shows:

	a.  He enlisted in the Regular Army (RA) on 6 November 1973.

	b.  On 20 November 1973, he received a psychiatric evaluation and was diagnosed with severe inadequate personality

		(1)  He met retention standards in accordance with chapter 3 (Retention Medical Fitness Standards), Army Regulation (AR) 40-501 (Medical Services – Standards of Medical Fitness).  There was no disqualifying mental or physical defects sufficient to warrant disposition through medial channels.  He had a severe character and behavior disorder with no violent tendencies, but believed not to be emendable to further rehabilitative efforts or potential to become an effective Soldier.  It was believed he would not adjust to further military service and further rehabilitative efforts. 

		(2)  He was responsible, distinguished right from wrong and has mental capacity to understand and participate in board proceedings.  He was cleared for any administrative decision deemed appropriate by command.  He was very inadequate, had psychosomatic breathing problems on several occasions since coming into the Army, was nervous and anxious and not effective under stress.  He was cleared for separation under provisions of Department of Army (DA) Message, Training and Doctrine Command (TRADOC) Circular 635-1.

   c.  On 5 December 1973, the applicant's immediate commander notified the applicant that he was initiating separation proceeding on him under provisions of DA message TRADOC Circular 635-1, date time group 011510Z August 1973 because:

* he had demonstrated the inability to adjust emotionally to military life
* when subjected to stress situations or vigorous physical training the applicant experiences loss of breath and become extremely nervous
* unable to participate in all facets of basic combat training
* unable to finish the basic physical fitness test
* psychiatric evaluation revealed a condition that was not amenable to rehabilitative efforts and is not compatible with continued military service

   d.  On 7 December 1973, the applicant acknowledged the notification of the proposed discharge from the U.S. Army.  He acknowledged:

* he understood that due to non-completion of requisite active duty time his Veteran Administration benefits will be effected
* he desired to have counsel assist him in explaining the discharge procedures or in making statement in his own behalf
* he did not desire a separation examination
* he desired to make statements in his own behalf

   e.  On 7 December 1973, his unit commander initiated separation proceedings on the applicant.

	f.  On 10 December 1973, the separation authority approved the discharge under provisions of DA message 011510Z August 1973 (Evaluation and Discharge of Enlistees Before 180 Active Duty Days) and he will be issued an honorable discharge certificate.

	g.  DA Form 3082-R (Statement of Medical Condition) dated 14 December 1973, signed by the applicant stated that he underwent a separation medical examination more than three working days prior to his departure from the place of separation.  To the best of his knowledge, since his last separation examination there had been no change in his medical condition.

	h.  He was honorably discharged from active duty on 14 December 1973.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged in accordance with DA message 011510Z August 1973 with an honorable characterization of service.  His DD Form 214 showed that he completed 1 month and 9 days of active service.  

	i.  The applicant's record is void of evidence that shows he applied for review of his discharge processing to Army Discharge Review Board within that board's 15-year statute of limitations. 

5.  In the processing of this case, a medical advisor opinion, dated 25 April 2019, was received from the Army Review Boards Agency Medical Advisor.  The advisory official stated that the applicant did not meet medical accession standards for an EPTS (existed prior to service) non disclosed medication treated nervous condition (inadequate personality and/or an anxiety condition in current medical terminology) in accordance with chapter 2 (Procurement Medical Fitness Standards), AR 40-501.  The applicant met medical retention standards for visual acuity (PULHES with E-2 no glasses) medical, physical, dental, and/or behavioral conditions in accordance with chapter 3 (Retention Medical Fitness Standards), AR 40-501 and following the provision set forth in AR 635-40 that were applicable to the applicant’s era of service.

6.  The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal/additional comments, but he did not respond.

7.  By regulation 15-185 (ABCMR), applicants do not have a right to a hearing before the ABCMR.  The Director of the ABCMR may grant a formal hearing whenever justice requires.

8.  DA Message DAPE-MPE, DTG 011510Z, August 1973 (Trainee Discharge Program), provided the authority for the discharge of enlistees before 180 days of
active duty, and remained in effect through the publication of Interim Change 011735Z to Army Regulation 635-200 in December 1975. It allowed for the discharge of RA enlistees prior to completion of training based on their inability to adapt; failure to meet training standards; failure to meet moral, mental, or physical standards; and possess a character and behavior disorder not compatible with continued service. Members separated under these provisions received an honorable discharge.

9.  By regulation 40-501 (Standards of Medical Fitness), provided medical fitness standards of sufficient detail to ensure uniformity in medical evaluation of certain enlisted military occupational specialties and officer duty assignments in terms of medical conditions and physical defects which are causes for rejection or medical unfitness for these specialized duties.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that relief was not warranted.  Based upon the applicant already receiving an Honorable Discharge, the Board failed to see any error or injustice in the record that the Board can correct on behalf of the applicant.

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.
	 
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.


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.  DA Message DAPE-MPE, DTG 011510Z, August 1973 (Trainee Discharge Program), provided the authority for the discharge of enlistees before 180 days of active duty, and remained in effect through the publication of Interim Change 011735Z to Army Regulation 635-200 in December 1975. It allowed for the discharge of RA enlistees prior to completion of training based on their inability to adapt; failure to meet training standards; failure to meet moral, mental, or physical standards; and possess a character and behavior disorder not compatible with continued service. Members separated under these provisions received an honorable discharge.

3.  AR 15-185 (ABMCR) states board members will review all applications that are properly before them to determine the existence of an error or an injustice.  The ABMCR decides 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 ABMCR may grant a formal hearing whenever justice requires.  

4.  AR 40-501 (Standards of Medical Fitness), in effect at the time, provided medical fitness standards of sufficient detail to ensure uniformity in medical evaluation of certain enlisted military occupational specialties and officer duty assignments in terms of medical conditions and physical defects which are causes for rejection or medical unfitness for these specialized duties.

	a.  Chapter 2 (Procurement Medical Fitness Standards), in effect at the time, sets forth the medical conditions and physical defects which are causes for rejections for military service in peace time.  Male and female applicants for enlistment in the U.S. Army regardless of component.  These standards are applicable until enlistees have completed 4 months of active duty or active duty for training under the Reserve Enlistment Program 1963 for medical conditions or physical defects existing prior to original enlistment or induction.

   b.  Chapter 3 (Retention Medical Fitness Standards), in effect at the time, sets forth the various medical conditions and physical defects which normally render a member unfit for further military service.  All enlisted personnel of the U.S. Army regardless of component or duty status.  

5.  AR 635-40 (Physical Evaluation for Retention, Retirement or Separation), in effect at the time, establishes policies and prescribes procedures for the physical disability evaluation of members of the Army for retention, retirement or separation.

ABCMR Record of Proceedings (cont)	 AR20170002757


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