RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          5 April 2005
      DOCKET NUMBER:  AR20040004894


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Mr. Thomas E. O'Shaughnessy       |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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.  The applicant requests that his discharge be changed to a medical
separation.

2.  The applicant states that he is currently 100 percent service-connected
disabled.  He was medically evacuated from Korea to Walter Reed Army
Medical Center where he was a resident for about one month and then was
discharged without a medical board hearing.

3.  The applicant provides his DD Forms 214 (Certificate of Release or
Discharge from Active Duty) for the periods ending 12 April 1974 and 22
August 1981; a Department of Veterans Affairs (VA) Rating Decision dated 12
February 2004; and extracts from his medical records.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 22 August 1981.  The application submitted in this case is
dated 23 July 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 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 National Guard on 20 August 1973.
He completed basic training and advanced individual training and was
awarded military occupational specialty (MOS) 11E (Armor Crewman).  He was
ordered to active duty on 6 March 1975.  He enlisted in the Regular Army on
23 August 1976 for 5 years making his expiration term of service (ETS) 22
August 1981.

4.  A statement dated 26 March 1978 from the applicant's commander
indicated that a permanent physical profile and assignment limitations due
to the applicant's severe spinal condition prohibited him from moving in
and out of armored vehicles.  The commander recommended he be reclassified
to a more appropriate MOS.

5.  On 22 August 1978, an MOS Reclassification Board recommended the
applicant's primary MOS be withdrawn and that he be reclassified.  After
several abortive attempts to reclassify him into other MOSs, he was awarded
primary MOS 03C2O (Physical Activities Specialist) effective 7 May 1979.

6.  On 16 January 1980, the applicant received an approved local bar to
reenlistment for being unable to meet the weight control standards after a
medical evaluation determined there was no evidence of an underlying or
associated disease process as the cause of his overweight condition.

7.  On 7 July 1980, the applicant was evaluated for a complaint of heart
pain.  A cardiac catheterization was normal with the exception of showing
elevated end diastolic pressures.  He did have a positive treadmill test
and continued to have signs and symptoms suggestive of angina.  The
physical examination, with the exception of obesity, was otherwise
unchanged.  He was given a temporary physical profile due to heart pain.

8.  The applicant's Senior Enlisted Evaluation Report (SEER) for the period
ending July 1980 showed that he had performed his duties as a physical
activities specialist excellently and that he carried out all assigned
tasks quickly and efficiently.

9.  On 16 July 1981, while in Korea, the applicant was hospitalized with a
chief complaint of pain in the low back region.  He was diagnosed with left
lumbosacral radiculopathy, history of hypertension and history of angina,
and obstructive pulmonary disease.  He was medically evacuated to the
States for evaluation and treatment.

10.  The applicant's SEER for the period ending July 1981 showed that he
performed his duties with Recreation Services in an outstanding manner.

11.  On 3 August 1981, the applicant was given a permanent physical profile
for diagnoses of (1) obesity; (2) cardiovascular disease, manifested by
angina, treated with medications; and (3) lumbosacral strain, most likely a
result of diagnosis number 1.

12.  On 22 August 1981, the applicant was honorably separated upon his ETS.

13.  The 12 February 2004 VA Rating Decision provided by the applicant
shows that his evaluation for hypertension with angina was increased from
60 percent to 100 percent effective 1 October 1999.  Apparently his rating
for sciatica remained at 60 percent.

14.  Army Regulation 635-40 governs the evaluation of physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  The unfitness is of such a degree that a Soldier is
unable to perform the duties of his office, grade, rank or rating in such a
way as to reasonably fulfill the purposes of his employment on active duty.
 It states that the mere presence of an impairment does not, of itself,
justify a finding of unfitness because of physical disability.  In each
case, it is necessary to compare the nature and degree of physical
disability present with the requirements of the duties the Soldier
reasonably may be expected to perform because of his or her office, grade,
or rank.  It 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.

15.  Army Regulation 635-40, at the time, stated that when a Soldier was
being processed for separation or retirement for reasons other than
physical disability, continued performance of assigned duty commensurate
with his or her rank or grade until the Soldier was scheduled for
separation or retirement, created a presumption that a Soldier was fit.
Application of the rule did not mandate a finding of fit.  The presumption
was rebuttable and was overcome when the preponderance of evidence
established the Soldier was physically unable to perform adequately the
duties of his or her office, grade or rank.

16.  Title 38, U. S. Code, sections 1110 and 1131, permits the VA to award
compensation for a medical condition which was incurred in or aggravated by
active military service.  The VA, however, is not required by law to
determine medical unfitness for further military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he is currently 100 percent service-
connected disabled and that he was medically evacuated to Walter Reed Army
Medical Center where he was a resident for about one month and then
discharged without a medical board hearing have been carefully considered.

2.  However, at the time a Soldier who was being processed for separation
for reasons other than physical disability and continued his or her
performance of assigned duty commensurate with his or her rank or grade
until scheduled for separation created a presumption that the Soldier was
fit.  Application of the rule did not mandate a finding of fit.  The
presumption was rebuttable and was overcome when the preponderance of
evidence established the Soldier was physically unable to perform
adequately his duties.

3.  The applicant's normal ETS was in August 1981.  He had been barred from
reenlistment in January 1980 and so he had to separate in August 1981.
Although he had low back problems since at least March 1978 and heart pain
since July 1980, his last two SEER's showed that he was able to perform his
duties in MOS 03C.  His SEER for the period ending July 1981, just one
month prior to his separation, showed that he performed his duties with
Recreation Services in an outstanding manner.  Therefore, there is
insufficient evidence to overcome the presumption of fitness rule in his
case.

4.  The VA, in accordance with its own policies and regulations, awards
compensation solely on the basis that a medical condition exists and that
said medical condition reduces or impairs the social or industrial
adaptability of the individual concerned.  Consequently, due to the two
concepts involved, 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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 August 1981; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on         21 August 1984.  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

__mdm___  __teo___  __jrm___  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.




            __Mark D. Manning_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040004894                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050405                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]