IN THE CASE OF:
BOARD DATE: 25 September 2008
DOCKET NUMBER: AR20080010221
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 from the Regular Army be changed to a medical discharge.
2. The applicant states, in effect, that he came home from Vietnam suffering from Agent Orange exposure, ringing of the ears, a right knee injury, Post-Traumatic Stress Disorder, type II Diabetes, heart disease, and foot problems.
3. The applicant further states that he has been living with the above conditions and fighting with the Department of Veterans Affairs (VA) to get what he can.
4. The applicant states that he provides documents from VA "Claim Number C25781246." However, the documents are not available.
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 28 August 1967. He successfully completed basic training and advanced individual training and was awarded military occupational specialty 13A (Field Artillery Basic). The applicant served in Vietnam from 18 April 1968 through 30 March 1970.
3. On 1 April 1970, the applicant was separated due to the expiration of his term of service and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) in pay grade E-6.
4. The applicant was honorably discharged from the USAR on 1 June 1973 upon completion of his obligated military service.
5. A DD Form 4/1 (Enlistment/Reenlistment Document - Armed Forces of the United States), dated 2 June 1973, shows that the applicant reenlisted in the USAR for 1 year in the pay grade of E-6.
6. A DD Form 4/1, dated 17 January 1975, shows that the applicant enlisted in the Oregon Army National Guard (ORARNG) for 1 year in the pay grade of E-6.
7. A National Guard Bureau (NGB) Form 22 (Report of Separation and Service), with the ending period 16 January 1977, show that the applicant was honorably discharged from the ORARNG due to the expiration of his term of service.
8. A NGB Form 22, with the ending period 5 February 1981, shows that the applicant was honorably discharged from the ORARNG due to the expiration of his term of service. This NGB Form indicates that he enlisted in the ORAGNG on 6 February 1977.
9. The applicant's military medical records are not available.
10. Army Regulation 635-40 (Physical Evaluation), chapter 3 provides 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. To be found unfit by reason of physical disability, individuals must be unable to perform the duties of grade, rank or rating.
11. Army Regulation 140-111 (United States Army Reserve Reenlistment Program), prescribes policies and procedures for the USAR Reenlistment Program. Table 2-1 provides the basic reenlistment eligibility criteria. It states that a Soldier must meet the retention medical fitness standards in Army Regulation 40501, provided a medical examination has been conducted within the time frame specified in AR 40501, to be eligible for reenlistment.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his honorable discharge from the Regular Army in April 1970 should be changed to a medical discharge. However, there is no evidence of record that indicates he was ever unable to perform his military duties. It appears when he separated from active duty he was medically eligible for retention.
2. Furthermore, evidence of record shows the applicant reenlisted in the USAR in June 1973 and enlisted in the ORARNG in 1975 which is a further indication that he was not medically unqualified for retention. The evidence of record and the applicant himself fail to indicate he could not perform his military duties. He provides no evidence that show he could not perform his duties or how he enlisted in the USAR and the ORARNG without being qualified for retention. The only reasonable explanation is that he considered himself fit enough to continue to serve.
3. Based on the above, the applicant has not submitted sufficient evidence to show he was eligible for referral to the physical disability system or that he was ever unfit by reason of physical disability.
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.
_______xxxx _______ ___
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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