IN THE CASE OF:
BOARD DATE:
DOCKET NUMBER: AR20080008597
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 discharge be corrected to show he received a medical retirement.
2. The applicant states that he believes he should have been offered a physical evaluation board (PEB) based on injuries he incurred while on active duty and the functional limitations he had from those injuries.
3. The applicant provides his separation document (DD Form 214) and copies of his military 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 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 enlisted in the Regular Army on 2 July 1980, was awarded the military occupational specialties of electronic warfare/signal intelligence noncommunications interceptor and administrative specialist, and he was promoted to pay grade E-6.
3. The applicants military medical records show that he was treated for leg cramps, heart burn, a fracture of his right tibia, back pain, and sleep problems.
4. In conjunction with the applicants separation, he was given a final physical examination. The applicant listed all of his medical conditions in this examination. However, he was determined to be medically qualified for retention without any physical profile restrictions, with the exception of wearing glasses.
5. On 26 December 1991, the applicant was honorably discharged for failure to meet body fat standards.
6. Army Regulation 635-40, then in effect, provided that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a MEB. Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.
7. Army Regulation 635-40, then in effect, stated that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. The overall effect of all disabilities present in an individual whose physical fitness is under evaluation must be considered both from the standpoint of how the disabilities affect the individuals performance, and requirements which may be imposed on the Army to maintain and protect him during future duty assignments. All relevant evidence must be considered in evaluating the fitness of a member. When a member is referred for physical evaluation, evaluations of his performance of duty by his supervisors may provide better evidence than a clinical estimate by a physician of the members physical ability to perform the duties of his office, grade, rank, or rating until the time he was referred for physical evaluation. Thus, if evidence establishes that the member adequately performed the normal duties of his office, grade, rank or rating until the time he was referred for physical evaluation, he might be considered fit for duty, even though medical evidence indicates his physical ability to perform such duties may be questionable.
DISCUSSION AND CONCLUSIONS:
1. While the applicant was treated for several medical conditions, he was determined medically qualified for separation.
2. Since the applicant was medically qualified for separation, there was no basis for referring him to a MEB. Without a MEB, he could not have been referred to a PEB.
3. In view of the foregoing, there is no basis for granting the applicants request.
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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