RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 May 2007
	DOCKET NUMBER:  AR20060010879 


	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. Gerard W. Schwartz

Acting Director

Ms. Lisa O. Guion

Analyst

The following members, a quorum, were present:


Mr. Richard T. Dunbar

Chairperson

Mr. Michael J. Flynn

Member

Ms. Rose M. Lys

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 separation document (DD Form 214) reflect his service connected disability. 

2.  The applicant states, in effect, that he incurred a service connected disability while on active duty.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error that occurred on 1 April 1970, the date of his separation.  The application submitted in this case is dated 2 August 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 military records show he was inducted into the Army and entered active duty on 2 April 1968.  He completed basic combat training and advanced individual training (AIT) at Fort Jackson, South Carolina.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 
11C (Infantry Indirect Fire Crewman).

4.  The applicant's Enlisted Qualification Record (DA Form 20) shows, in
Item 31 (Foreign Service), that he served in the Republic of Vietnam (RVN), from 9 September 1968 to 1 September 1969.  Item 33 (Appointments and Reductions) shows that he attained the rank of specialist five (SP5) on 18 July 1969, and that this is the highest rank he attained while serving on active duty.


5.  A Physical and Mental Status on Release From Active Service (DA Form 1811) on file, dated 28 February 1970, confirms the applicant's Physical Profile on the date of his separation was 111111, and that he was fully qualified for retention/separation.

6.  On 24 March 1970, Headquarters, III Corps and Fort Hood, issued Special Orders Number 72, directing the applicant’s release from active duty (REFRAD), under the provisions of Section VI, Chapter 2, Army Regulation 635-200.  The orders specifically indicated that his REFRAD was not by reason of physical disability

7.  On 1 April 1970, the applicant was honorably REFRAD after completing a total of 2 years of active military service.  The DD Form 214 issued to him on the date of his separation confirms he was REFRAD under the provisions of Section VI, Chapter 2, Army Regulation 635-200, by reason of “Expiration Term of Service (ETS).  The applicant authenticated this separation document with his signature in Item 32 (Signature of Member Being Transferred or Discharged) on the date of his REFRAD.  

8.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 2, of the version of the regulation in effect at the time of the applicant's separation stated, in pertinent part, that Soldiers will be separated from active duty upon termination of enlistment, period of induction, and other periods of active duty or active duty for training.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating.  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, rank, or rating.  Separation by reason of disability requires processing through the PDES.  Chapter 4 contains guidance on processing through the PDES, which includes the convening of a Medical Evaluation Board (MEB) to document a Soldier's medical status and duty limitations insofar as duty is affected by the soldier's status.  If the MEB determines a soldier does not meet retention standards, the case will be referred to a Physical Evaluation Board (PEB).  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  

10.  The PEB also investigates the nature, cause, degree of severity, and probable permanency of the disability of soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

11.  Title 38, United States 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.  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.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his separation document should be corrected to reflect his service connected disability was carefully considered.  However, there is insufficient evidence to support this claim.  Further, there are no regulatory provisions that provide for entering non-disabling medical conditions on a separation document.  

2.  The evidence of record confirms the applicant was not physically or mentally disabled at the time of his separation, as evidenced by the DA Form 1811 completed on him during his separation processing.  This document confirms he had a 111111 Physical Profile at the time of his separation.  Further, there are no other medical treatment records or documents on file that indicate he suffered from a physically disabling condition that would have warranted his being processed for a medical separation through the Army PDES. 

3.  The applicant is advised that the VA is the appropriate agency to query regarding medical treatment and disability compensation for service connected conditions subsequent to discharge.  Absent any evidence that shows the conditions in question were medically unfitting for further service at the time of his discharge, there is an insufficient evidentiary basis upon which to grant the requested relief.  
4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 1 April 1970, the date of his separation.  Therefore, the time for him to file a request for correction of any error or injustice expired on 31 March 1973.  He failed to 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 __  __MJF __  __RML __  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
AR20060010879
SUFFIX

RECON
NO
DATE BOARDED
2007/05/03
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
1970/04/01
DISCHARGE AUTHORITY
AR 635-200
DISCHARGE REASON
Chapter 2, ETS
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
108.0700
2.

3.

4.

5.

6.