| Mr. Carl W. S. Chun | Director | |
| Mr. Kenneth H. Aucock | Analyst |
| Mr. Mark Manning | Chairperson | |
| Mr. Richard Dunbar | Member | |
| Ms. Mae Bullock | Member |
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests physical disability retirement or separation.
2. The applicant states that he joined the service with a curvature of his spine. He was injured while in the service, sustaining a muscle sprain – a blown disk.
3. The applicant provides no evidence.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error or injustice which occurred on 29 August 1971. The application submitted in this case is dated 8 September 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. The applicant enlisted in the Army on 3 July 1966, completed training and in December 1966 was assigned to Korea as an engineer equipment maintenance repairman. He reenlisted for 4 years on 8 September 1967. In December 1967 he was assigned to Aberdeen Proving Ground in Maryland and trained as an vehicle repairman. Thereafter, he went to Fort Bragg, North Carolina and a unit of the 3d Infantry Division in Germany. In August 1969 he was assigned to a maintenance company in Vietnam. He completed his tour, and in July 1970 was assigned to an artillery battery in Korea.
4. The applicant's service is characterized by numerous acts of misconduct, for which he received nonjudicial punishment under Article 15, Uniform Code of Military Justice. In April 1971, while serving in Korea, his commanding officer recommended that he be barred from reenlistment. On 8 June 1971 the recommendation was approved. He returned to the United States in August 1971 and was released from active duty on 29 August of that year in the grade of private E-2.
5. The applicant's medical records are unavailable to the Board, other than a 6 August 1971 report of medical examination. That report shows that the applicant was medically qualified for separation.
6. On 5 August 1982 the applicant enlisted in the Army National Guard for 1 year in pay grade E-3. He was reduced for inefficiency on 9 December 1982, discharged from the Army National Guard with a general discharge and reassigned to the Army Reserve Control Group at St. Louis. On 24 September 1984 he was discharged from the Army Reserve with a general discharge.
7. 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.
8. Army Regulation 40-501 provides 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, rank or rating.
9. Army Regulation 635-40, then in effect, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's 6 August 1971 report of medical examination indicates that he was medically fit for retention at the time of his separation. He has submitted no probative medical evidence to the contrary.
2. Additionally, the applicant's continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.
3. The applicant did not have any medically unfitting disability which required physical disability processing. Therefore, there is no basis for physical disability retirement or separation.
4. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.
5. Records show the applicant should have discovered the alleged error or injustice now under consideration on 29 August 1971; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 28 August 1974. 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
__MM___ __RD ___ ___MB __ DENY APPLICATION
| CASE ID | AR2003096395 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 20040513 |
| 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. |
ARMY | BCMR | CY2002 | 2002072677C070403
The applicant requests correction of military records as stated in the application to the Board and as restated herein. At the time of the separation physical examination, competent medical authority determined that the applicant was then medically fit for retention or appropriate separation. The applicant’s claim that he now has PTSD because of his experiences in Vietnam is not supported by any evidence in his record, nor has the applicant submitted any evidence thereof.
ARMY | BCMR | CY1995 | 9509489C070209
In support of his application he submits a VA rating in which he was granted a disability rating for physical problems which are considered by VA to be service related, as a result of his exposure to Agent Orange in Vietnam. On 27 February 1973 a message change to Army Regulation 635-40 was dispatched which stated [W]hile a member may have medical conditions or physical impairments ratable under the Veterans Administration Schedule for Rating Disabilities, he will not be retired or...
ARMY | BCMR | CY2003 | 03097249C070212
The applicant was discharged from the Army Reserve on 15 March 1985. Army Regulation 40-3, chapter 7, provides for medical evaluation boards (MEBs), and that they are convened to document a service member’s medical status and duty limitations insofar as duty is affected by the member’s medical status. There is no evidence and the applicant has not submitted any to show that he was physically unfit at the time of his discharge.
ARMY | BCMR | CY1995 | 9508063C070209
The VA, however, is not required by law to determine medical unfitness for further military service. The medical evidence of record indicates that the applicant was medically fit for retention at the time of his separation. Records provided by the VA indicate that the applicant has been awarded compensation for medical conditions which that agency has determined to be related to military service.
ARMY | BCMR | CY2003 | 2003087425C070212
On 11 June 1980 the applicant's commanding officer recommended to the separation authority that the applicant be eliminated from the Army for unsuitability. A member separated for unsuitability will receive a general or honorable discharge characterization of service as warranted by his military record. The medical evidence of record indicates that the applicant was medically fit for retention at the time of his separation.
ARMY | BCMR | CY2002 | 2002073302C070403
Although the applicant’s medical records do show that he injured the middle finger of his left hand in March 1970, those medical records do not indicate any medical condition incurred while entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty. The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated. The medical evidence of record indicates that the applicant...
ARMY | BCMR | CY2011 | 20110010037
The applicant requests correction of his records to show he was discharged due to 100-percent physical disability. There is no available evidence to show the applicant had any medical issues that impacted his ability to perform his duties while serving on active duty. _______ _ 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.
ARMY | BCMR | CY2004 | 04101078C070208
RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 AUGUST 2004 DOCKET NUMBER: AR2004101078 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. 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. On 17 March 1970 the applicant's...
ARMY | BCMR | CY2003 | 03091941C070212
The applicant is either requesting physical disability retirement or discharge; or that his discharge under other than honorable conditions be upgraded to honorable or general. The applicant's request, however, is not available to the Board. The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application...
ARMY | BCMR | CY2001 | 2001059230C070421
The applicant requests correction of military records as stated in the application to the Board and as restated herein. APPLICANT STATES : That his condition has been diagnosed as moderate to severe aortic insufficiency with dilated aortic root (Marfan’s like syndrome), and that if his record of his medical condition was accurate upon his retirement, it would have shown a serious condition related to his cardio system. The applicant submits 16 tabs with his application, showing his medical...