RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 August 2006
      DOCKET NUMBER:  AR20050017733


      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. Joyce Wright                  |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Dale E. DeBruler              |     |Member               |
|     |Mr. James R. Hastie               |     |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, in effect, that his DD Form 214 (Certificate of
Release or Discharge from Active Duty) be amended to enable him to receive
medical care from the VA [Veterans Administration].

2.  The applicant states, in effect, that the Army knew he had a wrist
injury and cleared him for active duty (AD).  He had been receiving medical
care since his discharge.  However, all of a sudden, in 2004, he was
advised he was no longer eligible for medical care and was informed that it
would be charged.  He adds that he has been receiving benefits for about
20 years and all of a sudden, they sent a bill to his house.

3.  The applicant provides no additional documentation in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 31 March 1981, the date of his discharge.  The application
submitted in this case is dated 6 December 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's records contain a copy of a SF Form 88 (Report of
Medical Examination), dated 18 November 1980, that was prepared prior to
his entrance on AD, which shows that he was medically qualified for
enlistment with a 121111 physical profile.  His examination indicated that
he had a post right wrist laceration with good repair.

4.  The applicant's military records show he entered AD on 26 November
1980, as a radio teletype operator (O5C).



5.  On 26 February 1981, the applicant underwent a medical evaluation for
separation under the provisions of Army Regulation 635-40, chapter 5.  He
was diagnosed as having right median nerve palsy.  He was found unqualified
for retention on AD with a 141111 physical profile.  His Report of Medical
History (Standard Form 93) indicated that he did not qualify for
compensation.

6.  On 26 February 1981, the applicant's case was considered by an informal
medical evaluation board (MEB).  The MEB diagnosed the applicant as having
right median nerve palsy.  He was found unfit for further military service
in accordance with the provisions of Army Regulation 40-501.  The applicant
desired not to continue on AD.  The MEB recommended that the applicant be
separated from the service under the provisions of Army Regulation 635-40,
chapter 5.

7.  On 2 March 1981, a narrative summary was prepared for the MEB.  The
summary diagnosed the applicant as having right median nerve palsy.  The
summary indicated that the applicant was unable to perform his duties as a
radio teletype operator because of insensibility of his hand.

8.  The findings and recommendations of the MEB were approved on 24 March
1981.

9.  On 24 March 1981, the applicant requested discharge for physical
disability.  He was informed, that based on the findings and
recommendations of the MEB, that he was considered not qualified for
retention in the military service by reason of physical disability which
had been found EPTS (Existed Prior to Service) and which was neither
incident to nor aggravated by military service.  He understood that
entitlement to VA benefits would be determined by the VA.  He also
understood that if his request was approved, that he would be separated by
reason of physical disability, EPTS, and that he would receive a discharge
commensurate with the character of his service.

10.  The appropriate authority approved his request on 26 March 1981, for
separation under the provisions of Army Regulation 635-40, chapter 5.

11.  The applicant was honorably discharged on 31 March 1981 under the
provisions of Army Regulation 635-40, chapter 5, for physical disability-
EPTS-Medical Board.  He completed 4 months and 5 days of creditable
service.




12.  Army Regulation 635-40, which governs the separation of Soldiers who
are physically unfit, paragraph 5–1, states that this chapter provides for
separation of an enlisted Soldier for non-service aggravated Existed Prior
to Service (EPTS) conditions when the Soldier requests a waiver of PEB
evaluation.  This chapter is applicable to enlisted Soldiers on active duty
for more than 30 days.  Separation under the authority of this chapter is
not to be confused with separation under the provisions of Army Regulation
635-200, chapter 5.  The latter provides for involuntary separation within
the first 6 months of entry onto active duty for failure to meet
procurement fitness standards.  Paragraph 5–2 of this regulation states
that in order to separate a Soldier under this chapter, the case must meet
the following conditions:

      (1) Soldier is eligible for referral into the disability system;

      (2) The Soldier does not meet medical retention standards as
determined by the MEB;

      (3) The disqualifying defect or condition existed prior to entry on
current period of duty and has not been aggravated by such duty;

      (4) The Soldier is mentally competent;

      (5) Knowledge of information about his or her medical condition would
not be harmful to the Soldier’s well being;

      (6) Further hospitalization or institutional care is not required;

      (7) After being advised of the right to a full and fair hearing, the
Soldier still desires to waive PEB action; and

      (8) Soldier has been advised that a PEB evaluation is required for
receipt of Army disability benefits, but waiver of the PEB will not prevent
applying for VA benefits.

Unless otherwise indicated, the Soldier would be issued an honorable or
general discharge commensurate with his service.





13.  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, 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 medical evaluation board determines the Soldier does not
meet retention standards, the board will recommend referral of the Soldier
to a physical evaluation board.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was diagnosed as having
a post right wrist laceration with good repair prior to his entry on AD.
He appeared before a MEB and was diagnosed as having right median nerve
palsy, EPTS.
The applicant's medical evaluation for separation, dated 26 February 1981,
indicated that he was not qualified for retention on active duty.

2.  The applicant was found unfit for military service by a MEB and desired
not to remain on AD.  The MEB recommended that he be discharged under the
provisions of Army Regulation 635-40, chapter 5.

3.  The applicant submitted his recommendation for discharge which was
approved by the appropriate authorities.  He was separated from the service
under the provisions of Army Regulation 635-40, chapter 5, for physical
disability-EPTS-Medical Board.

4.  The applicant asserts that the Army knew that he had a wrist injury,
was cleared for AD, and was receiving medical care since his discharge.
However, he is no longer eligible for medical care and was informed that it
would not be changed.

5.  Despite his assertions, the applicant did not provide evidence to show
that he was receiving his medical care from the VA over the last 20 years.
Therefore, based on the evidence, there is no basis to correct his DD Form
214 to show that he is entitled to medical care.

6.  The evidence shows that the applicant understood that if his request
for discharge was approved that entitlement to VA benefits would be
determined by the VA.

7.  The regulatory authority stated that a PEB evaluation was required for
receipt of Army disability benefits, but waiver of the PEB would not
prevent him from applying for VA benefits.

8.  In accordance with governing laws, the VA is the Department responsible
for compensating veterans when service related conditions cause social or
industrial impairment after a Soldier's discharge.

9.  It is noted that eligibility for medical benefits provided by the VA to
eligible recipients does not fall within the purview of the Army Board for
Correction of Military Records (ABCMR).  Therefore, the applicant must
visit the nearest VA regional office to discuss concerns pertaining to
medical benefits with VA representatives.

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

11.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 March 1981; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 30 March 1984.  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

___A____  __D_____  _JRH___  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.




                                  ____James E. Anderholm_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050017733                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060808                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19810331                                |
|DISCHARGE AUTHORITY     |AR 635-40, chapter 5                    |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |100                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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