IN THE CASE OF:	

		BOARD DATE:	  2 October 2008

		DOCKET NUMBER:  AR20080010956


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, reconsideration of his earlier petition requesting his record be corrected to show he was retired by reason of physical disability.  

2.  In a letter to a Member of Congress (MOC), the applicant states, in effect, that he is providing new evidence required by the Board that will clear his name as an honorable Army veteran.  

3.  The applicant provides a self-authored letter to a MOC and two doctor's statements in support of 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.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080001914 on 15 April 2008. 

3.  During its original review of the case, the Board found that at the time of his discharge processing, the applicant admitted to a life-long history of poor vision and that on at least two previous occasions he had been rejected for military service based on poor vision.  It further determined that in his request for discharge, the applicant acknowledged that his eye condition existed prior to service (EPTS) and that he was not entitled to severance pay benefits based on his eye condition.  The Board finally concluded that the applicant was properly discharged by reason of an EPTS physical disability in accordance with the applicable regulations in effect at the time with no indication of any procedural errors that would tend to jeopardize any of his rights.  

4.  The applicant provides two doctor's statements as new evidence.  The first statement is dated 27 May 2008, from a medical doctor, who concludes the medical examinations the applicant underwent in the military were erroneous and that based on the fact the applicant underwent basic training and Reconnaissance (Recon) training, and earned a marksman badge, shows he could not have been legally blind upon entry into the Army.  He concludes by stating that it is his belief the applicant should probably be service connected for an eye injury received while in the military, but should not be punished by what seems to be erroneous eye findings at the time of his injury.  The second doctor's statement is from an Optometrist who discusses his examination of the applicant and recounts the applicant's history as it appears was presented to him by the applicant, which includes an eye injury while breaking up a fight while in the military.  He provides no other definitive conclusions regarding the applicant's eye condition.  

5.  The applicant's record shows that he enlisted in the Regular Army and entered active duty on 31 July 1967.  He completed basic training at Fort Jackson, South Carolina, and was transferred to Fort Know, Kentucky, to undergo advanced individual training (AIT) as an Armor Recon specialist on
2 October 1967.  He failed to complete recon training and was transferred to undergo AIT training as a cook.   

6.  A Clinical Record (SF 502) on file contains a narrative summary for a medical board in which the applicant states that in the past, despite prescription glasses he had worn; his vision had been poor binocularly.  The applicant further indicated that he had never had ophthalmic surgery, trauma, or known illnesses, and he had diligently worn his glasses full time as instructed.  
7.  In the medical board narrative summary, the applicant also stated that due to this particular problem, he had been rejected (from military service) and classified as 4-F on two occasions in the past.  

8.  On 4 December 1967, the applicant requested discharge for physical disability and confirmed that he had been informed that he was considered unfit for retention by reason of physical disability that existed prior to enlistment which was neither incident to nor aggravated by his military service.  He further confirmed that he understood that he was entitled to the same consideration and processing as any other member of the Army who was separated by reason of physical disability which, in effect, included separation processing through medical channels (Physical Disability Evaluation System-(PDES)).  He elected not to exercise his right to this medical processing and/or a full and fair hearing.  

9.  On 8 December 1967, a Physical Evaluation Board (PEB) at Valley Forge General Hospital, Phoenixville, Pennsylvania, determined the applicant was unfit for military service due to an EPTS condition that was not aggravated by military service.  

10.  On 21 December 1967, the applicant was honorably discharged under the provisions of chapter 9, Army Regulation 635-40, by reason of physical disability-EPTS.  The separation document he was issued confirms he completed a total of 4 months and 20 days of active military service and held the rank of private/E-2 on the date of his discharge.  

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  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, rank, or rating.  Separation by reason of disability requires processing through the PDES.  

12.  Chapter 4 of the same regulation contains guidance on processing through the PDES, which includes the convening of a MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  


13.  The same regulation stipulates that the PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  It also investigates the nature, cause, degree of severity, and probable permanency of the disability of soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.  

14.  The disability regulation also provides for the separation of an enlisted Soldier for non-service aggravated EPTS conditions when a Soldier requests a waiver of PEB evaluation, and concurs with discharge.  

15.  Title 38, United States Code, sections 1110 and 1131, 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.  

16.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected to show he was retired by reason of physical disability was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms and the applicant admitted that his 
pre-existing eye condition disqualified him for enlistment (twice), and that this eye condition did in fact exist prior to entering military service.  The record also shows that during his discharge processing, the applicant waived further former processing through the PDES, and concurred with the discharge action taken based on his EPTS condition.  The applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  Although one of the doctor's supporting statements opines that the eye examinations completed by the Army were erroneous, this lone opinion does not call into question the application of the fitness standards used by proper military medical authorities during the applicant's medical separation processing.  A medical opinion rendered more than 40 years after the fact is not sufficiently compelling to call into question the validity of the medical judgments rendered by proper military medical authorities at the time of the applicant's separation processing.  Therefore, there is an insufficient evidentiary basis to amend the original Board decision and/or to grant the requested relief in this case.  

4.  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

___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 to amend the decision of the ABCMR set forth in Docket Number AR20080001914, dated 15 April 2008.  




      _______ _ 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.

ABCMR Record of Proceedings (cont)                                         AR20080010956



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ABCMR Record of Proceedings (cont)                                         AR20080010956

   
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