RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 June 2007
	DOCKET NUMBER:  AR20070001163 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Ms. Margaret K. Patterson

Chairperson

Mr. Ronald D. Gant

Member

Mr. Rowland C. 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 show that he was medically separated.

2.  The applicant states, in effect, that his discharge should be changed to show that he was medically separated due to an injury in service and the subsequent amputation of his right arm and shoulder.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 15 February 1979, the date he was separated by reason of physical disability.  The application submitted in this case is dated 10 December 2006 but was received for processing on 23 January 2007.

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 record shows he entered active duty on 4 April 1978.   The applicant successfully completed basic combat training and advanced individual training at Fort Leonard Wood, Missouri.  On completion of his OSUT (one station unit training), he was awarded the military occupational specialty (MOS), 12B, Combat Engineer.  He was advanced to pay grade E-2 on 4 October 1978.

4.  Item 35 (Record of Assignments), of his DA Form 2-1 (Personnel Qualification Record – Part II), shows that he was a patient on 19 November 1979, at the Medical Holding Company, Fort Hood, Texas, and was reassigned home, pending a medical board.   





5.  The applicant’s medical records, medical evaluation board (MEB), and physical evaluation board (PEB) are unavailable for review by this Board.

6.  The applicant was honorably discharged on 15 February 1979, under the provisions of Army Regulation 635-40, paragraph 4-19e(3), physical disability, with severance pay, in the pay grade of E-2, and was given a 20 percent disability rating.  He completed 10 months and 12 days of creditable service.  He was paid severance pay in the amount of $934.88.  

7.  Item 29 (Signature of Person being Separated), of his DD Form 214 (Report of Separation from Active Duty), shows the entry "Separatee unavailable for signature." 

8.  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.

9.  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.

10.  Paragraph 4-19, of Army Regulation 635-40, in effect at that time, pertains to actions by the CG (Commanding General), MILPERCEN (Military Personnel Center-now known as the Army Human Resources Command [AHRC]) for the Secretary of the Army (SA).  It also states, in pertinent part, that based on review of the findings and recommendations of the PEB, the CG will take final action, by direction of the SA.  He may direct separation for physical disability with severance pay.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's medical records, MEB, and PEB are unavailable for review.  

2.  The applicant alleges that he received an injury in service.  There is no evidence, and the applicant has provided none, to show that he received an injury while serving on active duty.  His records revealed that he was a patient at the MHC, Fort Hood, Texas, pending an MEB.  He was reassigned home pending an MEB.

3.  The applicant was honorably discharged on 15 February 1979, under the provisions of Army Regulation 635-40, chapter 4, paragraph 4-19e(3), for physical disability, with severance pay, and was given a 20 percent disability rating.

4.  The applicant's DD Form 214 shows he was unavailable for signature at the time of his discharge.  It is apparent he is unaware of the type of discharge he currently holds.  The applicant was processed out of the Army through its physical disability processing system.  Therefore, his records are correct as currently constituted and Government regularity is presumed in the discharge process.

5.  The applicant alleges that he subsequently had an amputation of his right arm and shoulder.  There is no evidence, and he has provided none to support this report.  

6.  In accordance with governing laws, the VA is the governmental agency responsible for compensating veterans when service-connected conditions cause social or industrial impairment after a Soldier's discharge. 

7.  The applicant is advised to visit with a representative of the Department of Veterans Affairs to determine which of a wide array of veterans' programs and benefits he may be entitled to as a result of his service before his discharge.

8.  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 failed to submit evidence that would satisfy this requirement.




9.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 15 February 1979; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 14 February 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

__RCH__  __MKP  _  __RDG__  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.




_____M. K. Patterson_______
          CHAIRPERSON




INDEX

CASE ID
AR20070001163
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070614
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19700326
DISCHARGE AUTHORITY
AR 635-200, chapter 2
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
108
2.

3.

4.

5.

6.