IN THE CASE OF:	  

		BOARD DATE:	        21 MAY 2009

		DOCKET NUMBER:  AR20090002443 


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 discharged instead of honorably discharged.

2.  The applicant states that he has medical problems that he did not have when he went into the Army.  He adds that these problems have affected his walking abilities since his discharge and that he now uses a walker and wears a brace on his knees. 

3.  The applicant provides copies of various medical reports, treatment records, progress reports, emergency room records, outpatient records, and other medical documents, dated on miscellaneous dates from 2004 to 2008, in support of his 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 record shows he enlisted in the Regular Army for a period of 3 years on 27 March 1973.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 55B (Ammunition Storage Specialist).  He was honorably discharged on 9 April 1975 for the purpose of immediate reenlistment and executed a 6-year reenlistment on 10 April 1975.  The highest rank/grade he attained during his military service was sergeant (SGT)/E-5.

3.  The applicant’s record also shows he served in Germany from on or about 1 October 1974 to on or about 14 December 1976 and on or about 18 August 1982 to on or about 19 February 1985.

4.  The applicant’s record further shows he was issued a series of temporary physical profiles throughout his military service for various medical conditions, none of which required action by medical board proceedings or entry into the physical disability evaluation system, as follows:

	a.  on 9 September 1976, for chondromalacia patella (kneecap pain), he was determined to be medically qualified for limited duty; 

	b.  on 4 April 1978, for a left thumb injury; he was medically qualified for temporary restricted duty; 

	c.  on 11 June 1979, for recurrent dislocating left patella; he was medically qualified for duty with temporary limitations; 

	d.  on 17 July 1979, for medial meniscus tear of the left knee; he was medically qualified for duty with temporary limitations; 

	e.  on 31 October 1980, for left shoulder strain; he was medically qualified for duty with limitations; 

	f.  on 20 January 1981, for possible fracture of left navicular (wrist bone); he was medically qualified for duty with temporary limitations; and

	g.  on 18 May 1983, 26 July 1983, and 24 August 1983, for status post fracture navicular.


5.  On 4 June 1984, the applicant’s immediate commander initiated a Bar to Reenlistment Certificate against the applicant for a history of overdrafts from his checking account.  He was furnished with a copy of this bar on 28 June 1984; however, he elected not to submit a statement in his own behalf.  The bar was ultimately approved by the approval authority on 23 August 1984.

6.  On 25 January 1985, the applicant voluntarily requested an early separation from the Army under the provisions of paragraph 16-5b of Army Regulation    635-200 (Personnel Separations) by reason of his inability to overcome the bar imposed upon him on 4 June 1984.   

7.  On 31 January 1985, the separation authority approved the request for separation and directed the applicant be furnished an Honorable Discharge Certificate.  The applicant was accordingly discharged on 20 February 1985.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of paragraph 16-5b of Army Regulation 635-200 by reason of a locally imposed bar to reenlistment with an honorable character of service.  This form further shows he completed a total of 11 years, 10 months, and 23 days of creditable active military service.  

8.  The applicant provides copies of various medical reports, treatment records, progress reports, emergency room records, outpatient records, and other medical documents, dated on miscellaneous dates from 2004 to 2008 that show he had knee pain over the years, caused by various reasons, including slipping while mowing the grass in April 2004, knee stiffness in May 2004, twisting and/or popping his knee in June 2004, and falling from a horse during a horseback riding session in June 2008.  He also underwent various therapy sessions, treatment techniques, and flexion range of motion exercises.  

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the medical evaluation board (MEB) determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB).

10.  Paragraph 3-1 of this regulation provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform his/her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

11.  Paragraph 3-2b provides for retirement or separation from active service.  This provision of regulation states that disability compensation is not an entitlement acquired by reason of service incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  The regulation also states that, when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit. 

12.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Department of Veterans Affairs Schedule for Rating Disabilities.  Department of Defense Instruction 1332.39 and Army Regulation 635-40, Appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should have been medically discharged.  

2.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.  

3.  The evidence of record shows that the applicant suffered various illnesses and/or injuries throughout his career and that he was issued appropriate physical profiles that identified his physical and/or geographical limitations.  However, in each case, he was determined to be medically qualified for and returned to duty. There is no evidence that any of his injuries would have warranted his referral to the physical disability evaluation system.  Therefore, he was not considered by an MEB.  Without an MEB, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or separated/retired for physical disability

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)                                         AR20090002443





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ABCMR Record of Proceedings (cont)                                         AR20090002443



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