RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 April 2008
	DOCKET NUMBER:  AR20080001914 


	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.




Director



Analyst

      The following members, a quorum, were present:




Chairperson



Member



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 records be corrected to reflect that he was retired by reason of physical disability.  

2.  The applicant states, in effect, that he was unjustly discharged for defective vision that existed prior to service (EPTS) when in fact he should have been medically retired because he was injured on active duty.  He goes on to state that he was accepted for enlistment, completed basic training and qualified marksman with his rifle, completed his advanced individual training (AIT) and recon school, all of which he could not have done if he were blind.  He also states that his medical records will show that he was injured on active duty and was treated for injuries to his eyes, which caused him to lose his sight.  

3.  The applicant provides a copy of his DD Form 214, a copy of his entrance medical examination, a partial copy of his Enlisted Qualification Record (DA Form 20), copies of medical treatment documents showing his being treated for poor vision, and a copy of a rating decision from the Department of Veterans Affairs (VA).  

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 applicant’s 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 applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was born on 11 July 1947 and enlisted in Raleigh, North Carolina on 31 July 1967 for a period of 3 years.  He completed his basic combat training at Fort Jackson, South Carolina and was transferred to Fort Knox, Kentucky to undergo his advanced individual training (AIT) as an armor reconnaissance (recon) specialist on 2 October 1967.

3.  The applicant did not complete his recon training and was transferred to another company at Fort Knox on 23 October 1967, to undergo AIT as a cook.  He completed that training and received orders transferring him to Fort Sill, Oklahoma.   

4.  Meanwhile, on 2 November 1967, a narrative summary for a medical board was prepared which indicates that the applicant had stated that he had had poor vision in both eyes of life-long duration despite any effort to correct it by refractive means.  He also stated that due to that particular problem, he had been rejected and classified as 4-f on two occasions in the past.  The physician who authored the narrative indicates that when the applicant was first examined on 7 August 1967, he was given an E-2 profile, but on repeated examinations in the eye clinic it was fully realized that he had a bilateral amblyopia and that his visual acuity does not come above 20/200 in either eye.  He further opined that the applicant did not meet retention standards and should be separated from the service as an erroneous entry.

5.  On 30 November 1967, the applicant appeared before a Medical Evaluation Board (MEB) which found the applicant medically unfit for further military service due to Refractive error of both eyes and Amblyopia of both eyes, that EPTS.  The board determined that his condition EPTS and that it was not aggravated by active duty.  The board recommended that he be separated from the service under the provisions of Army Regulation 635-40, chapter 9.       

6.  The applicant indicated that he did not desire to continue on active duty and the findings and recommendations of the board were approved on 2 December 1967.  The applicant agreed with the boards findings and recommendations on 4 December 1967 and on the same day submitted an application for expeditious discharge by reason of physical disability - EPTS.  In his request, he waived his right to a hearing and acknowledged that he understood that his condition EPTS and that it was found not to be incident to or aggravated by his military service.  

7.  A review of the medical documents submitted by the applicant shows that as early as 7 August 1967, he began to receive evaluations for his eyes and on 9 October 1967, he was again evaluated because he failed the driver’s visual acuity test.   

8.  On 8 December 1967, a Physical Evaluation Board (PEB) found the applicant unfit for military service – EPTS and concurred with the recommendation for separation.    

9.  Accordingly, he was honorably discharged on 21 December 1967, under the provisions of Army Regulation 635-40 due to physical disability – EPTS, established by medical board and individual made application for discharge by reason of physical disability (not entitled to receive severance pay).  He had served 4 months and 20 days of active service.

DISCUSSION AND CONCLUSIONS:

1.  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.
 
2.  The applicant’s contention that he should have been retired by reason of physical disability because his disqualifying condition was aggravated or caused by his military service has been noted and found to lack merit.  The evidence of record clearly shows that the applicant admitted to having a life-long history of poor vision and on at least two previous occasions had been rejected for military service based on his poor vision.  

3.  While it appears that a mistake was made when he enlisted and was determined to be fit for military service, that mistake was subsequently recognized and properly corrected.  Additionally, the applicant acknowledged in his request for discharge that his condition EPTS and that he was not entitled to severance pay benefits.  

4.  Accordingly, it appears that he was properly discharged by reason of physical disability – EPTS in accordance with the applicable regulations in effect at the time with no indication of any procedural errors that would tend to jeopardize any of the applicant’s rights.  Therefore, lacking evidence to the contrary, there appears to be no basis to grant his request.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__PHM __  __KSJ__  __JGH__   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.





      ___        PHM                ___
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080001914



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
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