IN THE CASE OF:
BOARD DATE: 04 SEPTEMBER 2008
DOCKET NUMBER: AR20080010332
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 records be corrected to reflect that he was retired by reason of physical disability.
2. The applicant states that he was struck by lightning and was released with a medical discharge; however, he should have been medically retired by reason of physical disability.
3. The applicant provides a copy of his DD Form 214.
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 United States Army Reserve (USAR) in Raleigh, North Carolina on 4 August 1980 for a period of 6 years. He was ordered to initial active duty for training (IADT) on 15 August 1980 and was transferred to Fort McClellan, Alabama to undergo his basic combat training (BCT). He completed his BCT and was transferred to Fort Lee, Virginia to undergo his advanced individual training as a petroleum supply specialist. He completed his AIT and was honorably released from IADT on 12 December 1980, due to completion of training and was returned to his USAR unit in Wilson, North Carolina.
3. The applicant was advanced to the pay grade of E-4 on 19 May 1984 and on 10 May 1985, he was declared an unsatisfactory participant and was transferred to the USAR Control Group (Annual Training) to complete his remaining statutory service obligation.
4. On 3 August 1986, the applicant was honorably discharged from the USAR upon completion of his Statutory Service Obligation and his records were transferred to the control of the National Personnel Records Center.
5. On 29 March 1993, the applicants medical records were loaned to the Department of Veterans Affairs in New Orleans, Louisiana.
6. A review of the available records, less the applicants medical records, fails to show that the applicant was struck by lightning or that he suffered any physical disabilities while on active duty.
7. Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, provides in pertinent part, that all relevant evidence must be considered in evaluating the fitness of a Soldier. Findings with respect to fitness or unfitness for military service will be made on the basis of the preponderance of the evidence. Thus if the preponderance of evidence indicates unfitness, a finding to that effect will be made. This is particularly true if medical evidence establishes the fact that continued service would be harmful to the Soldiers health or would prejudice the best interests of the Army. Although the ability of a Soldier to reasonably perform his or her duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion (world-wide deployability) will not serve as the sole basis for a finding of unfitness. It also 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.
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 has failed to show through the evidence of record and the evidence submitted with his application that he was unfit for retention or separation from the service by reason of physical disability.
3. Therefore, in the absence of such evidence, there appears to be no basis to grant his request to be retired by reason of physical disability.
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) AR20080010332
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