IN THE CASE OF:	  

	BOARD DATE:	  22 July 2008

	DOCKET NUMBER:  AR20080007238 


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, a medical retirement or disability severance pay. 

2.  The applicant states, in effect, that he should have been medically retired.  He contends that on 23 May 1981, during a field training expedition, he sustained a gunshot injury to both eyes by a small group of hostiles simulating warfare.  He contends that he received powder burns to his face and eyes which required immediate surgery.  

3.  The applicant states that he should have been separated with a physical disability discharge since his disability was incurred while he was entitled to basic pay, that the physical limitation which the Army relied upon and considered rendered him unfit to perform and/or continue to perform the duties/assignments of his grade, rank, or rating, and that the disability was not the result of his intentional misconduct nor willful neglect.  He points out that had the physical impairment been properly assessed and rated, the rating would have been at least 30 percent since the impairment was of such nature as to disqualify him from performing his assigned military occupational specialty for the remainder of his service tenure.    

4.  The applicant provides a Power of Attorney; two letters, dated 26 February 2008 and 15 June 2007, from a Member of Congress; a letter, dated 8 June 2007, from the U.S. Army and Joint Services Records Research Center, Alexandria, Virginia, to a Member of Congress; two DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 4 May 1983 and 30 March 1979; a Personnel Qualification Record; and service medical records.

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 on 8 June 1976, served in military occupational specialty (MOS) 36C (wire system installer), and was honorably discharged for immediate reenlistment on 29 March 1979.  He reenlisted on 30 March 1979 for a period of 4 years. 

3.  A DA Form 3647-1 (Inpatient Treatment Record Cover Sheet), dated 26 May 1981, shows the applicant sustained superficial facial powder burns with conjunctival and intracorneal foreign bodies when a gun went off in his face on 23 May 1981 on post, on duty.  The foreign bodies were removed from his eyes in the emergency room. 
 
4.  On 17 June 1981, the applicant was issued a permanent profile of 111121 under eyes (corneal scar, left eye and light sensitivity secondary to corneal scar, left eye).  His assignment limitations were as follows:  may wear dark glasses when on duty outdoors.

5.  The applicant was promoted to specialist four in MOS 36C on 1 April 1982.

6.  The applicant’s DA Form 2A (Personnel Qualification Record, Part I), prepared on 24 February 1983, shows the applicant’s physical profile was 111121.  

7.  The applicant was honorably discharged on 4 May 1983 under the provisions of Army Regulation 635-200, chapter 4, for expiration term of service.  He had served a total of 6 years, 9 months, and 23 days of creditable active service.  

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 4 of that regulation provides, in pertinent part, for the discharge or release from active duty upon termination of enlistment, and other periods of active duty or active duty for training.  

9.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states 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 Soldier reasonably may be expected to perform because of his or her office, grade, or rank.  It states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a Soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement indicates that a Soldier is fit.  

10.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  

11.  Army Regulation 611-201 (Enlisted Career Management Fields and Military Occupational Specialties) states, in pertinent part, that MOS 36C10 must possess a physical profile of 121222. 

12.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.
13.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.  Section 1212 provides that a member separated under Section 1203 is entitled to disability severance pay.

DISCUSSION AND CONCLUSIONS:

Evidence of record shows the applicant’s physical profile at the time of his discharge on 4 May 1983 was 111121.  This profile does not show that he was medically unfit to perform his duties, it shows he received a numerical designator of “2” under eyes which means he had a medical condition or physical defect which required certain restrictions in assignment within which he was physically capable of performing his military duty.  This PULHES was not even below the standard for initial award of MOS 36C.  Therefore, there is insufficient evidence to show the applicant was eligible for physical disability processing and there is no basis for a medical retirement.   

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  ___xx___  __xx____  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.


 _   _____xxxxx______________
       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)                                         AR20080007238





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080007238



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1