RECORD OF PROCEEDINGS


      IN THE CASE OF:

      BOARD DATE:        16 JUNE 2005
      DOCKET NUMBER:  AR20040005488


      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             |
|     |Mr. Kenneth H. Aucock             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Raymond Wagner                |     |Chairperson          |
|     |Mr. Kenneth Lapin                 |     |Member               |
|     |Ms. Delia Trimble                 |     |Member               |

      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.  In effect, the applicant requests physical disability retirement.

2.  The applicant states that he received a bar to reenlistment because of
his medical conditions.

3.  The applicant provides copy of his DD Form 214 (Certificate of Release
or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 31 October 2000.  The application submitted in this case
is dated      3 August 2004.

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 limitations 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 was an Active Guard Reserve Soldier who transferred to
the Retired Reserve on 31 October 2000 in the rank of sergeant first class
with more than 20 years of active federal service and more than 8 years of
inactive service. His DD Form 214 shows his specialties as that of a
personnel specialist, administrative specialist, and a motor transport
operator during his military career.

4.  The applicant’s medical records, furnished by the Department of
Veterans Affairs, show that he had numerous medical conditions, dating back
to 1987.  These conditions included:

      a.  Low back pain.  He complained of low back pain on 21 May 1987,
stating that the pain went back 7 years.  He had sutures removed from his
right mid back on 15 May 1991 as a result of a procedure to remove a mass
from his right shoulder.  A 16 December 1991 report of medical examination
indicates that he was medically qualified for retention with a physical
profile serial                    of 1 1 1 1 2 1.  He received a 60-day
temporary profile on 23 March 1994 for low back pain.  On 9 November 1994
he received a permanent profile of 1 1 3 1 1 1 because of degenerative
joint disease of the lumbar spine and hypothyroidism.  His commanding
officer indicated that the profile did not require a change in his military
occupational specialty or duty assignment.  A 22 December 1994 report of
medical examination indicated that the applicant was medically qualified
for retention with a physical profile of 1 1 3 1 1 1.  In the report of
medical history that he furnished for the examination, the applicant stated
that he was in good health.  The applicant was seen in August 1995 for low
back pain.  He was diagnosed with degenerative bone disease at the 22nd
Medical Group at McConnell Air Force Base on 26 June 1996.  He was seen at
physical therapy on 11 July 1996 for chronic low back pain, but failed to
show for follow on appointments with physical therapy.  A 5 November 1996
MRI (magnetic resource imaging) report indicated that he had degenerative
spondylosis of the lower cervical spine.  He was seen and evaluated for his
back problems in July 1998, August 1998, and on 8 September 1998.  The 8
September 1998 medical report noted that the August 1998 MRI had indicated
that the applicant’s lumbar spine showed degenerative changes with
degenerative disk disease throughout the lumbar spine, and indicated that
the applicant had persistent radicular symptoms in his legs, which were
worse with biking or taking the physical fitness test.  That report
indicated that the applicant had not attempted to make follow up
appointments.

      b.  In November 1991 the applicant was treated for bronchitis.  His
medical records show that he was a heavy smoker.

      c.  On 8 March 1991 a doctor at the Vanderbilt University Medical
Center confirmed that he had an overactive thyroid.

      d.  On 22 December 1994 cardiovascular screening indicated that the
applicant had one or more risk factors.  He was given a temporary profile
for     179 days, but was cleared for physical training.

      e.  He was treated for a rash on his elbows and hands on 20 July
1995, a condition which he indicated had occurred 10 years ago.  He was
diagnosed with eczema.

      f.  On 10 April 1997 the applicant underwent an operation for an
umbilical hernia and left inguinal hernia.  In June of that year he was
treated for abdominal pain and cramping and underwent an operation at Saint
Mary’s Regional Medical Center in Russelville, Arkansas, because of a
closed loop small bowel obstruction with vascular compromised small bowel
with generalized peritonitis.

      g.  A 2 June 1998 radiological examination report indicated that the
applicant had a history of bleeding ulcers.  The report indicated that the
impression given by the MRI might be on the basis of chronic peptic ulcer
disease with scarring, however, an active ulcer could not be excluded and
clinical correlation was indicated.


      h.  A 10 May 1999 medical report indicates that the applicant
requested medications because of high blood pressure and cholesterol for
blood pressure.  That report indicated that the applicant had a history of
non compliance.


      i.  In late June 1999 the applicant underwent a flexible sigmoidoscopy
– a procedure where a lighted instrument was inserted into the rectum to
visualize the lower colon and take biopsies if necessary.  A digital rectal
examination revealed a large amount of external hemorrhoids, slightly
inflamed.  There were scattered diverticula, and also polyps which were
approximately 5 to 6mm in size and again approximately 3 to 4mm in size.
Biopsies were taken of both the polyps and sent to pathology for reviewed.
The laboratory report indicated that both polyps were hyperplastic.


      j.  A 29 June 2000 medical report indicates that the applicant advised
that his thyroid stimulating hormones (TSH) was elevated, that he had been
feeling well, was sleeping better at night having less diarrhea, and that
his skin was not itching.

      k.  A 10 July 2000 medical report indicates that the applicant
complained of being dizzy, light headed, and felt faint, and that he had
diarrhea every morning for two months.


5.  The above conditions, examinations, evaluations, etc., are not all-
inclusive.  His medical records show treatment for other ailments and
indicate the medications that he was taking for his various medical
conditions.

6.  On 26 July 2000 orders were published attaching the applicant to the
transition point at Fort Riley, Kansas for separation processing with a
reporting date of 14 August 2000, and a scheduled date of separation of 31
October 2000. As indicated above, the applicant was transferred to the
Retired Reserve on that date.

7.  Army Regulation 635-40 establishes the Army physical disability
evaluation system and sets forth policies, responsibilities, and procedures
that apply in determining whether a Soldier is unfit because of physical
disability to reasonably perform the duties of his office, grade, rank, or
rating.  It provides for medical evaluation boards (MEBs), which are
convened to document a Soldier’s medical status and duty limitations
insofar as duty is affected by the Soldier’s status.  A decision is made as
to the Soldier’s medical qualifications for retention based on the criteria
in AR 40-501, chapter 3.  If the MEB determines the Soldier does not meet
retention standards, the board will recommend referral of the Soldier to a
PEB (Physical Evaluation Board).

8.  Physical evaluation boards are established to evaluate all cases of
physical disability equitability for the Soldier and the Army.  It is a
fact finding board to investigate the nature, cause, degree of severity,
and probable permanency of the disability of Soldiers who are referred to
the board; to evaluate the physical condition of the Soldier against the
physical requirements of the Soldier’s particular office, grade, rank or
rating; to provide a full and fair hearing for the Soldier; and to make
findings and recommendation to establish eligibility of a Soldier to be
separated or retired because of physical disability.

9.  Army Regulation 635-40 states in pertinent part 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.

10.  Department of Defense Instruction 1332.38 states in pertinent part
that the disability evaluation system compensates disabilities when they
cause or contribute to career termination.  Continued performance of duty
until a service member is approved for length of service retirement creates
a rebuttal presumption that a service member’s medical conditions have not
caused career termination.

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the applicant’s various medical conditions and ailments
that he had over his military career spanning more than 28 years, he has
not provided any evidence to indicate that he was physically unfit for
retention.  The evidence indicates that he voluntarily transferred to the
Retired Reserve after more than    20 years of active Federal service.  The
available evidence does not support the applicant’s contention that he was
barred from reenlistment because of his medical conditions.  Nonetheless,
his continued performance of duty up until his retirement creates a
presumption that he was physically fit for retirement.  He has not provided
any evidence to rebut that presumption.

2.  The applicant has submitted neither probative evidence nor a convincing
argument in support of his request.  His request for physical disability
retirement is not warranted.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 October 2000; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 29 October 2003.  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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__RW___  ___KL___  ___DT __  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 Wagner_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040005488                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050616                                |
|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.                      |                                        |


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