IN THE CASE OF:	  

		BOARD DATE:	       9 December 2008

		DOCKET NUMBER:  AR20080011421 


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 correction of his records to show he was medically retired instead of honorably separated.

2.  The applicant states that he found his medical discharge and wants a medical retirement of 30 percent, which he has not received since his discharge.

3.  The applicant provided a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 8 October 1976, in support of his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's records be corrected to show he was medically separated.

2.  Counsel states that the issues raised by the applicant amply advance his contentions and substantially reflect the probative facts needed for equitable review.

3.  Counsel did not provide any additional documentary evidence in support of the applicant's request.

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's records show he enlisted in the U.S. Army Reserve (USAR) on 5 February 1976.  He was subsequently ordered to active duty on 18 June 1976, completed basic combat and advanced individual training, and was awarded military occupational specialty 36K (Wireman).

3.  The applicant's records further show he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).  The highest rank he attained during this period of military service was private (PV2)/E-2.

4.  The facts and circumstances surrounding the applicant's release from active duty are not available for review with this case.  However, item 8c (Authority and Reason) of his DD Form 214 shows he was separated in accordance with paragraph 5-17 of Army Regulation 635-200 (Personnel Separations) by reason of "other designated physical or mental conditions" with an honorable discharge. He had completed 3 months and 23 days of creditable military service.

5.  The applicant’s medical records are not available for review with this case.

6.  The applicant’s records do not indicate that he was issued a medical profile or that he underwent a medical evaluation board (MEB) or a physical evaluation board (PEB). 

7.  The applicant submitted a copy of what appears to be an altered DD Form 214, dated 18 June 1976, in which item 8c (Character of Service) shows "Medical" instead of "Honorable" and item 24 (Disability Severance Pay) is marked "Yes" instead of "No" with a poorly handwritten entry which shows "10%" next to the word "amount."

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  In pertinent part, it states the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.

9.  Army Regulation 635-40, paragraph 4-7 states commanders of medical treatment facilities (MTFs) who are treating Soldiers in an assigned, attached, or outpatient status may initiate action to evaluate the Soldier's physical ability to perform the duties of his or her office, grade, rank, or rating.  Paragraph 4-8 states, when a commander believes a Soldier of his or her command is unable to perform the duties of his or her office, grade, rank, or rating because of physical disability, the commander will refer the Soldier to the responsible MTF for evaluation.

10.  Army Regulation 635-40, paragraph 4-9, states the MTF commander having primary medical care responsibility will conduct an examination of a Soldier referred for evaluation.  The commander will advise the Soldier's commanding officer of the results of the evaluation and the proposed disposition.  If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEB.  Paragraph 4-10 states an MEB makes its decision to separate a Soldier for physical unfitness on the Soldier's medical qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17, states designated commanders may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability and excluding conditions appropriate for separation processing under paragraph 5-11 (not meeting procurement medical fitness standards) or paragraph 5-13 (personality disorder) that potentially interfere with assignment to or performance of duty.

12.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of active service or a disability rated at least 30 percent.  Additionally, Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years active service and a disability rated at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records are void of the facts and circumstances that led to his discharge.  However, the applicant's DD Form 214 clearly shows that he was discharged under the provisions of Army Regulation 635-200, paragraph 5-17, for "Other Designated Physical or Mental Conditions."
2.  There is no evidence of record to show the applicant was ever unfit for military duty.  It appears that the applicant was administratively discharged for having a medical condition, not a disability.  In the absence of evidence to the contrary, it must be presumed that the applicant was properly discharged with an administrative separation rather than a medical separation.

3.  There is no evidence in the available records and the applicant did not submit any substantiating evidence that shows he was issued a permanent profile or that he underwent an MEB and/or PEB.  The Army must find that a Soldier is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

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 did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.   The applicant has not shown error, injustice, or inequity for the relief he requests.

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.


																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)                                         AR20080011421



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ABCMR Record of Proceedings (cont)                                         AR20080011421



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