RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 July 2007
	DOCKET NUMBER:  AR20070002158 


	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

Mr. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. John P. Infante

Chairperson

Ms. Rose M. Lys

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 that his under honorable conditions discharge (General Discharge) be upgraded to a medical discharge.

2.  The applicant states, in effect, that he would like for his general discharge to be corrected to a medical discharge with disability severance pay.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty), DD Form 215 (Correction to DD Form 214), Department of Veterans Affairs Statement in Support of Claim dated 7 April 2006, a copy of his medical records, and other supporting documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 16 February 1973.  The application submitted in this case was received on  
6 February 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 military records were not provided to the Board.  However, documentation submitted by the applicant show he entered active duty on  
31 December 1971.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty  
94B20 (Cook).  He received a undesirable discharge for misconduct-frequent incidents on 16 February 1973.  He had completed 1 year, 1 month and 3 days of active service and accrued 13 days of time lost.

4.  The applicant applied to the Army Discharge Review Board (ADRB) on 
1 July 1977.  On 9 June 1978, the ADRB reviewed the applicant's record and determined that his discharge was proper and not equitable.

5.  The ADRB recommended an upgrade to a General Discharge on the basis of several events in the applicant's record and with consideration to what may have been problems that influenced the applicant to misbehave.  The ADRB panel did not feel that the applicant's record justified an upgrade to fully honorable in view of the number of offenses recorded by seven Article 15s and in view of the overall ratings in the applicant's record.

6.  The applicant's medical records show that he was treated for pain in his right hip and joints since basic combat training and several other occasions particularly when the weather changed.

7.  On 15 January 1973, a Standard Form 93 (Report of Medical History) of the applicant's final separation examination shows that the applicant was in "Good Health" and that he have had swollen and painful joints, cramps in his legs, and frequent trouble sleeping.  The physician, at that time, noted that the applicant had "no current health problems" to report.

8.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his general discharge be upgraded to a medical discharge.

2.  His records show that he received an undesirable discharge that was later upgraded by the ADRB to a general discharge.

3.  While the applicant was treated for his pain in his right hip and joints on several occasions while on active duty, there is no evidence that the applicant's pain to his right hip and joints 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 for physical unfitness.

4.  Additionally, upon separation his medical records show that he had no current health problems.


5.  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 a medical discharge.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 16 February 1973; therefore, the time for the applicant to file a request for correction of any error or injustice expired on  
15 February 1976.  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

___jpi___  ___jrh___  ___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.




__________John P. Infante________
          CHAIRPERSON




INDEX

CASE ID
AR20070002158
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070724
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.