IN THE CASE OF:
BOARD DATE: 13 NOVEMBER 2008
DOCKET NUMBER: AR20080012079
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 be changed to a medical discharge.
2. The applicant states that he has a disability in his back that occurred while he was in the military service.
3. The applicant provides a letter from his elected representative dated 21 July 2008.
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's military records are not available for review. A fire destroyed approximately 18 million service members records at the National Personnel Records Center in 1973. It is believed that the applicant's records were lost or destroyed in that fire. However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.
3. The applicant's separation document (DD Form 214) shows he was inducted into the Army of the United States on 21 August 1951. No military occupational specialty was recorded in Item 5 (Qualifications, Specialty Number or Symbol) of his DD Form 214. However, his branch or class was recorded as chemical branch.
4. His reconstructed record shows that he served on active duty until he was honorably released and transferred to the U.S. Army Reserve on 31 July 1953. He completed 1 year, 11 months, and 11 days of Total Net Service Completed for Pay Purposes.
5. His available record does not contain any evidence of the applicant's physical unfitness while serving on active duty nor did the applicant submit any medical documentation that would validate his claim.
6. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides 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 Medical Evaluation Board (MEBD). Those members who do not meet medical retention standards will be referred to a Physical Evaluation Board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his honorable discharge be change to a medical.
2. There is no evidence of record that shows the applicant had a physical disability which would have warranted consideration by a MEBD. Without a MEBD, he could not have been referred to a PEB. Without a PEB, the applicant could not have been issued a medical discharge.
3. Therefore, he is not entitled to correction of his records to change his honorable discharge to a medical.
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) AR20080012079
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ABCMR Record of Proceedings (cont) AR20080012079
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