RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 29 November 2007
DOCKET NUMBER: AR20070009364
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. Michael L. Engle
Analyst
The following members, a quorum, were present:
Mr. John T. Meixell
Chairperson
Ms. Jeanette R. McCants
Member
Mr. Scott W. Faught
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 correction of his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) to show that he was physically disabled with a rating of 20 percent due to type 2 diabetes.
2. The applicant states, in effect, that to qualify his small business as a disabled veteran owned small business, his disability must be documented on his
DD Form 214. He further states that his current 20 percent physical disability is the result of his exposure to agent orange during his assignment to the Republic of Vietnam.
3. The applicant provides copies of his DD Form 214, Department of Veterans Affairs (VA) letter certifying his 20 percent disability, and his VA service-connected identification card.
CONSIDERATION OF EVIDENCE:
1. 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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 31 May 1967, the applicant was appointed a second lieutenant, United States Army Reserve (USAR), Corps of Engineers. He was ordered to active duty effective 3 January 1968, and assigned for duty as a platoon leader with the 3rd Engineer Battalion, Fort Riley, Kansas.
3. On 14 December 1968, the applicant was placed on orders for assignment to the Republic of Vietnam. On 24 January 1969, he was assigned for duty as a platoon leader with the 379th Transportation Company. On 18 July 1969, he was reassigned to Company A, 46th Engineer Battalion. He remained with this unit until his return to the United States on 24 December 1969.
4. On 31 December 1969, the applicant was honorably released from active duty, not by reason of physical disability, and transferred to the United States Army Reserve Control Group (Annual Training). He had attained the rank of first lieutenant and had completed a total of 2 years and 7 months of creditable active duty.
5. The applicant provided a VA letter, dated 1 February 2006, certifying that he has a compensable service-connected disability rated at 20 percent.
6. Army Regulation 40-501 (Standards of Medical Fitness) provides, in pertinent part, that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.
7. Army Regulation 635-5 (Separation Documents) provides that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record clearly shows that the applicant was honorably released from active duty, not by reason of physical disability, and transferred to the USAR. There is no evidence showing that he suffered from diabetes or any other medical condition making him medically unfit at the time of his release from active duty.
2. The DD Form 214 is a record of the applicant's period of active duty. There are no provisions to change this record based on medical conditions that occur subsequent to his release from active duty. Therefore, there is no identifiable error or injustice for the Board to correct.
3. 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 the aforementioned requirement.
4. In view of the above, the applicant's request should be denied.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
_ JTM __ __JRM __ __SWF__ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
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.
___ John T. Meixell ___
CHAIRPERSON
INDEX
CASE ID
AR20070009364
SUFFIX
RECON
DATE BOARDED
20071129
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.
108
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