IN THE CASE OF:	   

		BOARD DATE:	        7 April 2009

		DOCKET NUMBER:  AR20080018262 


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, a medical retirement. 

2.  The applicant states, in effect, that he was led to believe he had been discharged for medical reasons.  He points out that a request for fitness for duty evaluation was submitted by his commander on 15 April 1991 and that he now understands that he was not to be released until a determination was made and he appeared before a Medical Evaluation Board (MEB).  He states that he was not aware of this procedure until recently.     

3.  The applicant also states, in effect, that after his initial tour of duty he was separated with severe high frequency loss in his right ear and wounds to his left chest, left arm, face, and neck.  He contends that during one of his tours in Germany he suffered a severe back injury and a herniated disc, and that toward the end of his military career he experienced severe pain in both feet (Morton's Neuroma).

4.  The applicant provides a memorandum, dated 15 April 1991; five service medical records; his induction record; a DD Form 214 (Report of Transfer or Discharge) for the period ending 4 March 1970; a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 November 1991; and a letter, dated 10 November 2008, from a Member of Congress 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.  Having prior active service in the Army of the United States and inactive service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 9 April 1975.  He remained on active duty through continuous reenlistments.

3.  In support of his claim, the applicant provided a memorandum, dated 15 April 1991, from his commanding officer to a medical clinic at Fort Sam Houston, Texas, requesting that the applicant be evaluated for the purpose of determining fitness for duty.  The memorandum states that while the applicant did not have a permanent profile for his chronic back pain, pinched nerves, and shrapnel wounds (left elbow and shoulder), he had been seen by various physicians.  The memorandum also states that the applicant's ailments had a direct effect on his ability to perform and lead infantryman in combat and training situations.   

4.  On 9 May 1991, the applicant underwent a retirement separation physical examination at Fort Sam Houston, Texas, and was found to be qualified for retirement with a physical profile of 111211.

5.  On 30 November 1991, the applicant retired in the rank/grade of master sergeant (MSG)/E-8. 

6.  In support of his claim, the applicant also provided four service medical records which show he was treated for feet pain/problems in 1990.  He provided a service medical record, dated 27 March 1991, which shows he was diagnosed with symptomatic shrapnel wounds, and a request for evaluation of a surgical procedure was made.

7.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):
P-physical capacity or stamina, U-upper extremities, L-lower extremities,
H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  

8.   Title 10, U.S. 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.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that the mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that he was led to believe that he had been discharged for medical reasons, there is no evidence of record to support this contention.  

2.  Based on the applicant's commander's request for a fitness for duty evaluation on 15 April 1991, the applicant underwent a retirement physical examination on 9 May 1991 at Fort Sam Houston, Texas, and he was found qualified for retirement.    

3.  Evidence of record shows the applicant’s physical profile at the time of his retirement on 30 November 1991 was 111211.  This profile does not show that he was medically unfit to perform his duties, although it does show he received a numerical designator of “2” under hearing and ears which means he had a medical condition or physical defect which required certain restrictions in 

assignment within which he was physically capable of performing his military duty.  Therefore, there is insufficient evidence to show the applicant was eligible for physical disability processing and there is no basis for a medical retirement.   

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.



      _______ _   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)                                         AR20080018262



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ABCMR Record of Proceedings (cont)                                         AR20080018262



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