RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            08 APRIL 2004
      DOCKET NUMBER:   AR2003096166


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


  The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Ms. Gail J. Wire                  |     |Member               |
|     |Mr. William D. Powers             |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, disability retirement or separation.

2.  The applicant states, in effect, that he received a permanent physical
profile in November 1978 at which time he states he “was qualified for
medical separation.”  He states he sustained numerous injuries in the
military relating to his “feet, back, arthritis, and other injuries” and
that he entered the Army with “no disqualifying defects or communicable
diseases.”

3.  The applicant provides extracts from his service personnel and medical
records as well as copies of documents showing medical treatment subsequent
to his separation from active duty.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an injustice which occurred
on
20 June 1980.  The application submitted in this case is dated 11 August
2003.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  Records available to the Board indicate that the applicant entered
active duty on 21 June 1976.  He was training as an infantryman and served
primarily in Europe and at Fort Lewis, Washington.

4.  A January 1977 medical treatment document notes that the applicant
complained of pain in both feet “in the area of the toes….”  In February
1978 he was issued a temporary “L-3” profile for “pes planus.”  He was
precluded from walking over one mile, running or double timing, and
exposure of his feet to degrees below 32 degrees Fahrenheit.  By November
1978 he had received a permanent “L-3” profile for a “cold injury to feet.”
 Medical treatment documents indicated that his feet may have been exposed
to a cold weather injury in 1976.

5.  The applicant’s service medical records also note that he was treated
for an STD (sexually transmitted disease) and itchy skin while in the
military.




6.  The service medical documents, provided by the applicant, indicated
that he continued to receive periodic treatment for his feet.  However,
notwithstanding his foot condition, in September 1979 he received a
performance evaluation report on which his physical fitness was rated as
“5” by both his rater and endorser.  A rating of “5” was the highest rating
an individual could receive.  The evaluation noted that the applicant had
done “an efficient job while performing his duties as unit armor” and that
he was a “highly motivated, well informed soldier with the potential to
become a dynamic NCO [noncommissioned officer].”

7.  On 5 May 1980 the applicant underwent a physical examination in
preparation for his separation from active duty.  In his report of medical
history, the applicant indicated that his health was “good” but did note
that he had foot trouble and had been treated for frostbite between 1976
and 1977 while in Germany.  The evaluation physician acknowledged the
applicant’s permanent profile but found him medically qualified for
separation from active duty.

8.  On 20 June 1980, upon completion of his enlistment contract, the
applicant was released from active duty, with an honorable characterization
of service, in pay grade E-4.  His separation document indicates he
received a Re-entry (RE) Code of 1, indicating he was fully qualified for
reenlistment.

9.  Subsequent to the applicant’s separation from active duty he has been
treated for a variety of ailments.  In 1991 he was in a motor vehicle
accident and continues to receive treatment for back, neck, and shoulder
pain.  An April 1996 medical treatment document noted that the applicant
has had bilateral foot pain intermittent for years since he was in the
military.  It noted that he had no recent swelling or recent injuries and
that his foot pain was “possible plantar fasciitis.”  By 1998 a medical
treatment document indicated that the applicant “has demonstrated
significant relief of pain with strappings and desires permanent arch
supports to be prescribed.”

10.  Army Regulation 635-40 states that disability compensation is not an
entitlement acquired by reason of service-incurred illness or injury;
rather, it is provided to soldiers whose service is interrupted and they
can no longer continue to reasonably perform because of a physical
disability incurred or aggravated in service.  When a solider is being
processed for separation for reasons other than physical disability,
continued performance of assigned duty commensurate with his or her rank or
grade until the soldier is scheduled for separation, is an indication that
the applicant is fit.

11.  Title 38, United States Code, sections 1110 and 1131, permits the
Department of Veterans Affairs to award compensation for a medical
condition which was incurred in or aggravated by active military service.
An individual's medical condition, although not considered medically
unfitting for military service at the time of processing for separation,
discharge or retirement, may be sufficient to qualify the individual for VA
benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that because he had a permanent physical
profile he should have been medically retired or separated is without
foundation.  The evidence of record indicates that in spite of the profile,
the applicant continued to perform his military duties until he was
released from active duty.  The fact that he received a RE Code of 1 at the
time of his separation, indicating that he was fully qualified for
reenlistment, supports this conclusion.

2.  There is no evidence, and the applicant has not provided any, which
confirms that he was physically unfit to perform his duties at the time of
his separation.

3.  The evidence of record indicates he did not have any medically
unfitting disability which required physical disability processing.
Therefore, there is no basis for physical disability retirement.

4.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 June 1980; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
19 June 1983.  However, the applicant did not file within the 3-year
statute of limitations and has not provided a compelling explanation or
evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__RJW__  __GJW __  __WDP _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            ___Raymond J. Wagner_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003096166                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040408                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |