IN THE CASE OF:	  

		BOARD DATE:	       18 NOVEMBER 2008

		DOCKET NUMBER:  AR20080012700 


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, that his narrative reason for separation be changed to show medical or physical disability retirement.

2.  The applicant states that he suffers from the following impairments:  femur; eczema, residuals of a foot injury; irritable colon; loss of motion of middle finger; hemorrhoids; Gulf War illness; neurologic sign memory loss; upper and lower respiratory problems; sleep disorder; gastrointestinal signs or symptoms; joint pain; and chronic fatigue.  He states that the Gulf War Veterans that got out of the Army in early 1991 were not informed of the Gulf War illness and other health problems until mid 1995 and of the disability benefits that they should have been granted before they were discharged.  He states that he currently has a pending claim for compensation for Post Traumatic Stress Disorder (PTSD) and for depression.  He states that compensation for some of his illnesses has been granted and that appeals are pending for his other illnesses.  He states that he has “registry for Depleted Uranium” and that he has had treatments for pain management, anger management, “CAPP program,” PTSD treatment, Fibromyalgia Chronic Fatigue Syndrome, and Irritable Bowel Syndrome. 

3.  The applicant provides in support of his application, a statement dated 14 July 2008, providing information about his family, his illnesses, his attempts to receive benefits and financial relief, and his Army service; a copy of his Report of Separation and Record of Service (NGB Form 22); and copy of his Certificate of Release or Discharge from Active Duty (DD Form 214); a Department of 


Veterans Affairs (VA) Statement in Support of Claim, dated 26 March 2008; a self authored letter addressed to the VA dated 26 March 2008; a letter addressed to the Social Service Administration, from the VA Clinic of Wilmington, dated 6 February 2007; a letter addressed to him from the Fort Riley Freedom of Information Act (FOIA) Officer, dated 14 November 2007; a letter addressed to him from the United States Army War College and Carlisle Barracks, Archivist, dated 11 February 2008; a document entitled “Photocopy Fee Information;” a document entitled “Desert Shield/Storm History;” page 1 of a VA Rating Decision dated 3 September 2003; Medical Record Progress Notes; and a letter addressed to the Army Review Boards Agency, from a Military Review Boards Representative, dated 17 July 2008.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant’s honorable discharge be reviewed to determine if his separation process was in accordance with Department of Defense policies.

2.  Counsel states that the issues raised on the applicant’s Application for Correction of Military Records (DD Form 149) amply advances his contentions and substantially reflects the probative facts needed for an equitable review of this case.

3.  Counsel provides no additional documentation and rests this case on the evidence of record.

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.  On 13 March 1979, the applicant enlisted in the Army in Raleigh, North Carolina, for 4 years, in the pay grade of E-1.  He successfully completed his training as a cannon crewmember.  He remained on active duty through a series of reenlistments and extensions.

3.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows that the applicant was transferred to Saudi Arabia on 29 December 1990.  His DA Form 2-1 also shows that he returned to the Continental United States on 12 May 1991.

4.  After completing 12 years, 8 months and 18 days of net active service, the applicant was honorably released from active duty (REFRAD) on 30 November 1991, under the provisions of Army Regulation 635-200, chapter 4, at the expiration of his term of service and he was transferred to the United States Army Reserve Control Group (Annual Training) to complete his Reserve obligation.

5.  The applicant enlisted in the North Carolina Army National Guard (NCARNG) 1 December 1991.  He completed 3 months and 1 day of service this period and on 1 March 1992, he was honorably discharged from the NCARNG and he was transferred to the USAR Control Group (Reinforcement) to complete his Reserve obligation.

6.  The applicant reenlisted in the NCARNG on 1 December 1994.

7.  After completing 3 years and 1 month of net service this period, the applicant was released from the NCARNG on 31 December 1997, under honorable conditions, under the provisions of National Guard Regulation 600-200, chapter 4, due to unsatisfactory performance. 

8.  A review of the available records does not show that the applicant was suffering from any conditions while he was in the Army that would have required him to be processed for discharge through medical channels.

9.  The documents that the applicant submits in support of his application indicate that he submitted a claim for entitlement for a VA pension on 24 July 2000.  Medical Records Progress Notes show that he was being followed by the Mental Health Clinic for depression after complaining of fatigue, joint pain, stomach pain, loss of energy, feet pain, skin rash, hemorrhoids, and lower back pain for many years. The VA Rating Decision that he submitted dated 



3 September 2003, shows that his claim for a pension was granted, subject to income and net worth limitations.  The VA stated that his disabilities in addition to his service connected conditions include a depressive disorder, low back strain and headaches; and that the combined evaluation of all of his disabilities is at least 70 percent.

10.  The letter from a doctor at the VA Clinic of Wilmington, addressed to the Social Service Administration dated 6 February 2007, indicates that the applicant suffers from chronic pain and that he has been diagnosed with osteoarthritis and traumatic arthritis, as well as PTSD and depression.

11.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

12.  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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

13.  Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.



2.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The contentions made by the applicant and his counsel have been noted.  The supporting documents that the applicant submitted in behalf of his application have been considered.  However, there is no evidence in the available record, nor has the applicant submitted any evidence to show that he was suffering from any illnesses that would have required him to be processed through medical channels at the time of his REFRAD or discharge.

4.  Although he has been granted VA benefits based on illnesses that were determined by the VA to be service connected, the VA is not required by law to determine medical unfitness for further military service.  The applicant’s records do now show that he was physically or medically unfit for continued service at the time of his separation.  His records show that he was honorably REFRAD from the Regular Army at the expiration of his term of service and that he was discharged from the NCARNG for unsatisfactory participation.  In the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.

5.  In order to justify correction of a military record the applicant must show 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.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080012700



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ABCMR Record of Proceedings (cont)                                         AR20080012700



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