IN THE CASE OF:	  

		BOARD DATE:	        12 AUGUST 2008

		DOCKET NUMBER:  AR20080006873 


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 that his honorable discharge be changed to reflect that he was medically retired by reason of physical disability. 

2.  The applicant states that his combat injury caused him not to be able to complete his military career because he was unable to perform his duties. 

3.  The applicant provides no additional documents with his 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 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 enlisted in the Regular Army in Montgomery, Alabama on 12 November 1969 for a period of 2 years.  He completed his basic training at Fort Benning, Georgia and his advanced individual training (AIT) as a pioneer at Fort Leonard Wood, Missouri.  

3.  Upon completion of his AIT he was transferred to Germany on 11 April 1970.  He remained in Germany until 27 February 1971, when he was reassigned for duty in Vietnam.  He arrived in Vietnam on 31 March 1971 and was assigned to Company A, 26th Engineer Battalion, for duty as a combat engineer.  

4.  On 3 May 1971, the applicant sustained fragmentation wounds to the chest and arms.  He was awarded the Purple Heart.  

5.  He departed Vietnam on 4 November 1971 and was transferred to Fort Lewis, Washington, where he was honorably released from active duty (REFRAD) on 5 November 1971 as an overseas returnee.  He had served 1 year, 11 months and 24 days of total active service.  

6.  On 29 August 1972, the applicant again enlisted in the Regular Army in Montgomery, Alabama for a period of 4 years, training in the infantry career management field and a cash enlistment bonus.   

7.  He completed his training as a light weapons infantryman and was transferred to Germany.  He served 2 years in Germany and was transferred to Fort Hood, Texas for duty as a light weapons infantryman.  He was promoted to the pay grade of E-5 on 16 June 1975.  

8.  He remained at Fort Hood until 28 August 1976, when he was honorably discharged due to the expiration of his term of service (ETS).  He had served 4 years of active service during his current enlistment for a total of 5 years, 11 months and 24 days of total active service.

9.  A review of the applicant’s records shows that the applicant received excellent evaluation reports at Fort Hood and his platoon leader rated him as the best fire team leader in his platoon.  He was deemed to be an outstanding leader who was noted for his tactical and technical proficiency.  Additionally, there is no evidence in his official records that indicate the applicant was ever deemed unfit to perform the duties of his grade, rank or specialty.  His final separation physical and medical examination deemed him fit for retention and separation.  He was also deemed fully qualified for reenlistment at the time of his discharge.

10.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member may reasonably be expected to perform because of his or her office, rank, grade or rating.  

11.  Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

12.  There is a difference between the Department of Veterans Affairs (VA) and the Army disability systems.  The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.    

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been medically retired by reason of physical disability instead of being discharged on the expiration of his term of service has been noted and found to lack merit.   

2.  The applicant continued to perform his duties in an outstanding manner right up until the time of his discharge, with no indication of any medical disabilities that interfered with the performance of his duties.  

3.  Accordingly, he was properly discharged on his ETS with no indication of any violations of his rights.  

4.  It is also noted that the applicant was REFRAD after his return from Vietnam and subsequently enlisted in the Regular Army 5 years later and successfully performed the duties of his grade, rank and specialty for another 4 years before being properly discharged.  The applicant was deemed fully qualified for reenlistment at the time of his discharge and elected to be discharged instead.  

5.  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.              

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                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.



ABCMR Record of Proceedings (cont)                                         AR20080006873





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ABCMR Record of Proceedings (cont)                                         AR20080006873



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