RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 December 2005
      DOCKET NUMBER:  AR20050002916


      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. Prevolia A. Harper            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Mr. Scott W. Faught               |     |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 records be corrected to show that he
received a medical discharge.

2.  The applicant states that he should be evaluated for service-connected
disabilities that were incurred while serving on active duty.  He states
that he suffered from hearing loss and had problems after his discharge
ranging from hemorrhoids to a ruptured navel.  He further stated that he
was processed to receive a less than honorable discharge from the United
States Army Reserve (USAR) and that he was in the process of getting this
upgraded.

3.  The applicant provides two self-authored statements; medical documents
from Northeast Orthopaedics, dated 9 January 1986; a Chronological
Statement of Retirement Points; a copy of his Leave and Earnings Statement;
and a copy of his DD Form 214 (Report of Separation from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 14 June 1979.  The application submitted in this case is dated
11 February 2005.

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 enlisted in the Army on 19 June 1975 for a period of 4
years.
He completed the required training and was awarded the military
occupational specialty (MOS) 19E20 (Armor Crewman).  He served in Germany
from 2 February 1978 to 12 December 1979.  The highest rank he attained was
specialist five.

4.  The applicant’s military personnel records contain limited service
medical records.  These records fail to show the applicant was treated for
an injury or illness related to his military service.  There are no
documents which show the applicant requested or underwent an evaluation by
a Medical Evaluation Board (MEB) to determine his fitness for further duty.
5.  The applicant’s records are void of any request submitted by the
applicant for a Medical Evaluation Board prior to his discharge from the
Army.

6.  On 14 June 1979, the applicant was honorably released from active duty
(REFRAD) after completing 3 years, 11 months, and 25 days of creditable
active military service.  The separation document issued to the applicant
at the time confirms he was separated under the provisions of paragraph 5-
12, Army Regulation 635-200, release from active duty. The applicant
authenticated this document with his signature in Item 34 (Signature of
Person Being Transferred or Discharged).

7.  Orders Number 165-254, Headquarters, U.S. Army Training Center, Fort
Dix, New Jersey, dated 14 June 1979 show the applicant was relieved from
active duty, not by reason of physical disability.  He was REFRAD and
transferred to the USAR Control Group (Reinforcement).

8.  The applicant did not provide sufficient USAR records or information
pertaining to his less than honorable discharge from the USAR or his
appeal.

9.  The applicant provided a copy of a letter to his insurance company,
signed by a physician from Northeast Orthopaedics, dated 9 January 1986.
The physician stated that the applicant had knee surgery and a well healed
tibia fracture.  The physician further stated that it was his impression
that the knee injury and leg fracture accorded a 20 percent permanent
partial impairment of the function of the entire lower extremity.

10.  The applicant provided a copy of his progress notes from Northeast
Orthopaedics, dated 30 January 1987 which shows that the applicant was
previously diagnosed with a meniscus tear of the right knee.

11.  The applicant submitted a self-authored letter in response to a letter
sent to him by an ABCMR staff requesting clarification of his issues.  The
applicant provided response to this request that he was requesting a
medical discharge due to medical problems he was experiencing.  He further
advised that he was making every effort to locate needed records.

12.  The applicant submitted a statement with his original application,
which stated that he requested an evaluation for service-connected
disabilities.  He also stated that he had hearing loss while on active duty
with his tank outfit and experienced other health problems.


13.  The applicant further stated that after his release from active duty
in 1979, he entered the USAR and fractured his leg while working.  He
explained that he went to his family physician and was told he would miss
three months of work and he called his Reserve unit to notify them of his
physician’s advice.  He further explained that he failed his last timed run
and was processed for a less than honorable discharge from the USAR which
he is in the process of getting upgraded.

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 impairment does not, of itself,
justify a finding of unfitness because of physical disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that the narrative reason for his discharge
should be corrected and that his record should show he was medically
discharged was carefully considered.  However, insufficient evidence has
been provided to support this claim.

2.  While the Board empathizes with the applicant's experiences after he
was released from active service in the Army, there is no evidence to show
that he was unable to perform his duties due to a physical disability.  His
discharge orders show that he was relieved from active duty, not by reason
of physical disability.

3.  The civilian medical records provided by the applicant shows that he
had knee surgery in August 1985, many years after his release from active
duty and prior to his release from the USAR in 1987.  There is no
correlation between the knee surgery and a service related illness or
injury.  As a result, there is insufficient evidentiary basis to conclude
he suffered from a medically disqualifying condition that warranted his
being processed for a medical separation.

4.  The applicant claimed that he suffered hearing loss while serving with
his tank unit while serving in the Army.  However, there is insufficient
evidence in the available records to support his claim.


5.  The ABCMR does not correct records solely for the purpose of
establishing eligibility for benefits.  Further, it is not within the
purview of the Board to determine the applicant’s eligibility for VA
benefits.  Therefore, any questions he has regarding VA claims should be
addressed to that agency.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 June 1979; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 13 June 1982.  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

__RTD __  __JBG __  __SWF__  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.




                                  ____Richard T. Dunbar ___
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050002916                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051208                                |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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