RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 October 2006
      DOCKET NUMBER:  AR20060003447


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Meixell                  |     |Chairperson          |
|     |Mr. Peter Fisher                  |     |Member               |
|     |Mr. Rowland Heflin                |     |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 honorable discharge be
changed to a medical discharge.  He also requests back pay from 23 November
1965.

2.  The applicant states, in effect, that the Government lost or covered up
his
“P-3” and “U-3” profile and medical records.  He contends that he was not
given a medical separation or reassignment to (or retention in) a non-noise
hazardous military occupational specialty (MOS).  He states the Government
violated his right to file a claim in a timely manner, that he was never
supposed to be sent to Vietnam with a “P-3” and “U-3” medical profile, and
that the Department of Veterans Affairs (DVA) covered up his “P-3” and “U-
3” profile and medical records which prove that he is 100 percent service
connected disabled.  He further states that the DVA told him to drop his
claim for Post Traumatic Stress Disorder from Vietnam so they could work on
his pending claims on Agent Orange, that the Government and DVA conspired
together to violate all his civil and Constitutional rights and medical
claims, and that they destroyed his life and denied him service connected
disability and caused his medical conditions to worsen.

3.  The applicant also states that he should be entitled to 100 percent
service connection from the date of his entry into the service due to his
acceptance into the service with a “bad profile” and that he was diagnosed
with a pre-existing condition.

4.  The applicant provides five exhibits outlined in his personal
statement, dated 1 March 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 11 December 1967.  The application submitted in this case is
dated 1 March 2006.

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 underwent a pre-induction physical examination on
17 September 1965 and was found qualified for induction with a physical
profile of 111111.  Items 18 (Head, Face, Neck, and Scalp) and 38 (Spine,
Other Musculoskeletal) on his Standard Form 88 (Report of Medical
Examination), dated 17 September 1965, were rated abnormal due to a neck
injury with muscle spasms.  However, records show upon completion of an
orthopedic consultation the applicant was found fit for military service on
23 November 1965.

4.  The applicant was inducted on 23 November 1965.  He served as an
infantryman in Vietnam from 21 July 1966 through 17 July 1967.

5.  On 26 September 1967, the applicant underwent a separation physical
examination and was found qualified for separation with a physical profile
of 331111.

6.  On 11 December 1967, the applicant was honorably released from active
duty under the provisions of Army Regulation 635-200, chapter 2, for
expiration term of service and transferred to the U.S. Army Reserve (USAR)
to complete his remaining obligation.

7.  Orders show the applicant was honorably discharged from the USAR
effective 22 November 1971.

8.  There are no service medical records available.

9.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 2, in effect at the time,
provided, in pertinent part, for the discharge or release from active duty
upon termination of enlistment and other periods of active duty or active
duty for training.

10.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of
Medical Fitness) provides that the basic purpose of the physical profile
serial system is to provide an index to the overall functional capacity of
an individual and is used to assist the unit commander and personnel
officer in their determination of what duty assignments the individual is
capable of performing, and if reclassification action is warranted.  Four
numerical designations (1-4) are used to reflect different levels of
functional capacity in six factors (PULHES): P-physical capacity or
stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-
eyes, and S-psychiatric.  Numerical designator "1" under all factors
indicates that an individual is considered to possess a high level of
medical fitness and, consequently, is medically fit for any military
assignment.  .  Numerical designators "2" and "3" indicate that an
individual has a medical condition or physical defect which requires
certain restrictions in assignment within which the individual is
physically capable of performing military duty.  The individual should
receive assignments commensurate with his or her functional capacity.

11.  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.

12.  Army Regulation 635-40 governs the evaluation for physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  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.  When a Soldier is being
processed for separation for reasons other than physical disability,
continued performance of assigned duty commensurate with his or her rank or
grade until the Soldier is scheduled for separation or retirement indicates
that a Soldier is fit.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that he was diagnosed with a pre-
existing condition and inducted with a “bad profile,” evidence of record
shows the applicant was inducted with a physical profile of 111111.

2.  Although the applicant contends that he was never supposed to be sent
to Vietnam with a “P-3” and “U-3” medical profile, evidence of record shows
he served in Vietnam (from 21 July 1966 through 17 July 1967) prior to
receiving a physical profile of “3” under physical capacity or stamina and
a physical profile of “3” under upper extremities on 26 September 1967.

3.  There is no evidence of record to show the applicant was ever medically
unfit to perform his duties.  Regrettably, there is no basis for a medical
discharge or any back pay.

4.  Although the applicant contends that he should have been given a
reassignment to (or retention in) a non-noise hazardous MOS, there is no
evidence of record which shows he had a hearing problem.  Since he only had
two months remaining on his service obligation, and there is no evidence of
record which shows he was unable to perform in his MOS, there was no basis
for any reassignment.

5.  The DVA does not fall under the purview of this Board or the Department
of Defense.  The DVA, operating under its own policies and regulations,
assigns disability ratings as it sees fit.

6.  Records show the applicant should have discovered the alleged error now
under consideration on 11 December 1967; therefore, the time for the
applicant to file a request for correction of any error expired on 10
December 1970.  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

JM_____  _PF_____  _RH_____  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.



                                  ____John Meixell______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003447                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061017                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.0000                                |
|2.                      |128.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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