IN THE CASE OF:
BOARD DATE: 24 February 2009
DOCKET NUMBER: AR20080018860
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 he be granted 100 percent disability.
2. The applicant states, in effect, he was drafted while receiving state disability for a back injury.
3. The applicant provides no additional documentary evidence in support of this 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 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 was inducted on 17 April 1969. He completed basic combat and advance individual training and was awarded military occupational specialty 71B (Clerk Typist). The applicant was assigned to United States Army Europe effective 19 September 1969. On 15 September 1970, he requested to be released early from active duty to attend school. His request was approved on
24 September 1970. He was released from active duty on 15 January 1971.
3. The applicant's medical records are not available for review. However, a DA Form 47 (Record of Induction) shows the applicant did not claim to have any physical defects prior to induction.
4. Army Europe Form 2183 (Enlisted Personnel Data), dated 22 September 1970, shows the applicant did not have any physical defects and/or assignment limitations. It appears this form was part of his separation processing.
5. There is no evidence in the available records which shows the applicant was unfit for military service prior to induction or that he was physically unfit to perform his military duties prior to his release from active duty.
6. Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. Under the laws governing the Army Physical Disability Evaluation System, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits. One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that he should be granted 100 percent disability has been carefully reviewed and found to be without merit.
2. There is no evidence in the available records and the applicant has not provided sufficient evidence showing that he was physically unfit or sustained a disabling physical condition during his military service.
3. In the absence of evidence to support his claim of disability, there is no basis to grant 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.
_______ _ 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) AR20080018860
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ABCMR Record of Proceedings (cont) AR20080018860
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