RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 October 2006
      DOCKET NUMBER:  AR20060003842


      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. Dean L. Turnbull              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Carmen Duncan                 |     |Chairperson          |
|     |Mr. Jerome L. Pionk               |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |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 retirement.

2.  The applicant states, in effect, that he should have been medically
retired with at least 30 percent or more for his service-connected
disability for his feet.

3.  The applicant provides a copy of his Report of Medical History.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 23 April 1987, the date he was released from active duty.
 The application submitted in this case was received on 15 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's records show that he entered active duty on 24 April
1984.  He completed basic combat training and advanced individual training
and was awarded the military occupational specialty 94B10 (Food Service
Specialist).

4.  He served a tour of duty with Company B, 4th Engineer Battalion, 4th
Infantry Division, Fort Carson, Colorado.  His records show that while
assigned to the  
4th Infantry Division, he participated in a military exercise, Return of
Forces to Germany (REFORGER), during the period January through February
1985.

5.  On 8 January 1985, the applicant was treated for pain in his feet for 2
days.  He reported that his feet burned even though they felt warm, and
that he had worn overboots over his leather boots during the military
exercise.  He was then admitted to the hospital for cold injury.




6.  The applicant was placed on a temporary profile for suspected cold
weather injury and given the assignment limitation not to wear boots for
the period 11 July 1985 to 10 October 1985.  The applicant was assigned the
numerical designator "T3" under "P” (physical capacity or stamina) of the
physical profile.

7.  On 28 January 1987, the applicant's commander recommended that a local
Bar to Reenlistment be imposed against the applicant for overweight,
apathy, and personal behavior that brought discredit upon his unit and the
U.S. Army.

8.  On 12 February 1987, the appropriate authority approved the local Bar
to Reenlistment.

9.  On 1 April 1987, the applicant signed a statement indicating that he
did not desire a separation medical examination.

10.  He was honorably released from active duty for expiration term of
service on 23 April 1987 after serving 3 years of active service.

11.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 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.  Numerical designator "4" indicates that an individual
has one or more medical conditions or physical defects of such severity
that performance of military duty must be drastically limited.  The
numerical designator "4" does not necessarily mean that the individual is
unfit because of physical disability as defined in Army Regulation 635-40.




12.  To make a profile serial more informative, two modifiers are used: "P"
(permanent) and "T" (temporary).  The "T" modifier indicates that the
condition necessitating a numerical designator "3" or "4" is considered
temporary, the correction or treatment of the condition is medically
advisable, and correction will usually result in a higher physical
capacity.  In no case will individuals in military status carry a "T"
modifier for more than 12 months without positive action being taken either
to correct the defect or to effect other appropriate disposition.

13.  Chapter 3 (Retention Medical Fitness Standards) of Army Regulation
40-501 provides the standards for medical fitness for retention and
separation, including retirement.  Soldiers with medical conditions listed
in this chapter should be referred for disability processing.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) provides that the medical treatment facility commander with
the primary care responsibility will evaluate those referred to him and
will, if it appears as though the member is not medically qualified to
perform duty or fails to meet retention criteria, refer the member to a
Medical Evaluation Board (MEBD).  Those members who do not meet medical
retention standards will be referred to a Physical Evaluation Board (PEB)
for a determination of whether they are able to perform the duties of their
grade and military specialty with the medically disqualifying condition.

15.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 4 of that regulation provides,
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.  A Soldier separated upon expiration of enlistment or
fulfillment of service obligation will be awarded a character of service of
honorable, unless the Soldier is in entry level status and service is
uncharacterized.

16.  Title 38, United States Code, permits the Department of Veterans
Affairs (DVA) to award compensation for a medical condition which was
incurred in or aggravated by active military service.  The DVA, however, is
not required by law to determine medical unfitness for further military
service.  The DVA, 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 DVA benefits based on an
evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his honorable discharge should be changed
to a medical retirement.

2.  His records show that he was honorably released from active duty for
expiration term of service.

3.  While the applicant was treated for cold injury to his feet, he was
only given a temporary profile which expired 1 year and 7 months before he
was separated from active duty.

4.  As such, there is no evidence that the applicant's feet would have
warranted him being considered by a MEBD.  Without an MEBD, there would
have been no basis for referring him to a PEB.  Without a PEB, the
applicant could not have been issued a medical discharge or retired for
physical unfitness.

5.  Additionally, the record does not contain any evidence and the
applicant has not submitted any evidence, which would show that he could
not perform the duties of his military occupational specialty.

6.  The law allows the DVA to award compensation for a medical condition
which was incurred in or aggravated by active military service, which is a
prerogative exercised within the policies of that agency.  A rating awarded
after the applicant was discharged does not, in itself, establish physical
unfitness for Department of the Army purposes.

7.  In order to justify correction of a military record the applicant must,
or it must otherwise satisfactorily appear, that the record is in error or
unjust.  The applicant has failed to submit evidence that would satisfy
that requirement.  Therefore, he is not entitled to correction of his
records to show medical retirement.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 April 1987; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on  
22 April 1990.  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

___jlp___  ___rmn__  ___cd____  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.




                                  _________Carmen Duncan________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003842                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061024                                |
|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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