IN THE CASE OF:
BOARD DATE: 19 June 2008
DOCKET NUMBER: AR20080001595
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests, in effect, that his records be corrected to show he was medically retired.
2. The applicant states, in effect, that in 1972 he was seen by the Veterans Administrative Hospital, Fresno, California, for a bad back and the doctors wanted to do exploratory surgery. The applicant continues that he refused the surgery and was told to go home. The applicant refers to his QTC (Quality.Timeliness.Customer) Medical Service examination completed by Doctor Cxxxxxxx in 1972; however, the QTC Medical Service examination is not available for review with this application.
3. The applicant provides a copy of the Department of Veterans Affair's, Consent for Release of Information Form, dated 17 December 2007 in support of this application.
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. The applicant's record shows he was inducted into the Army on 22 January 1970. He completed basic training and advanced individual training and was awarded military occupational specialty 11D (Army Reconnaissance Specialist). The highest rank he attained while serving on active duty was specialist/pay grade E-4.
3. The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that, on 13 November 1971, he was honorably separated from active duty, as an early overseas returnee and transferred to the United States Army Reserve Control Group (Annual Training) to complete his service obligation.
4. There are no medical documents available in the applicant's military personnel records.
5. Army Regulation 635-200 (Personnel Separations), in effect at the time, set forth the basic authority in Chapter 5, for the separation of enlisted personnel for convenience of the government. Section VII of Chapter 5-14, pertains to overseas returnees. It states, pertinent part, that commanders are authorized to order separation for the convenience of the government of enlisted personnel for return to the U.S. Enlisted members of the Regular Army and USAR, who upon arrival have less than 3 months remaining before expiration of term of service (ETS) will be discharged for the convenience of the government, released from active duty, and returned to their former National Guard or Army Reserve status, or released from active duty and transferred to the USAR.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contends that his records should be corrected to show he was medically retired due to a bad back.
2. The applicants contentions are noted. However, there are no medical documents in his military record which show he was medically unfit to perform his duties.
3. Further, the applicant has failed to provide any medical documentation that shows he was rendered medically unfit to perform his duties while on active duty.
4. In order to justify correction of a military record the applicant must show, 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.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__X_____ ____X___ ___X____ 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.
_ ___X____ ___
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
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