IN THE CASE OF:	

		BOARD DATE:	11 August 2009    

		DOCKET NUMBER:  AR20090004137 


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, disability retirement.

2.  The applicant states he should have undergone a medical evaluation board and that he was misinformed regarding his eligibly to undergo a medical board for his back condition.

3.  The applicant provides multiple military medical treatment forms associated with his military service.

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.  Records available to the Board indicate the applicant enlisted and entered active duty as a Regular Army Soldier on 5 September 1975.  Following completion of training he was assigned to an artillery battery at Fort Sill, Oklahoma.

3.  The medical treatment records, provided by the applicant in support of his request, indicate that in March 1976 he was a passenger in a 2 ½ ton truck that was involved in a motor vehicle accident.  The Line of Duty investigation notes the applicant suffered a contusion to the right leg but was also treated for lower back pain.  Following his initial treatment for lower back pain, the applicant regularly sought treatment for back pain throughout 1976 and into 1977.  In July 1976 the applicant was issued a 30 day temporary physical profile for back pain.  In September 1976 one of the applicant’s treating physician noted the applicant was fit for duty but recommended he pursue a weight reduction program and back exercises.

4.  In January 1977, the applicant was promoted to pay grade E-4.  A performance evaluation report that was rendered in February 1977 with an ending date in January 1977 indicates the applicant “exceeds or meets duty requirements” in the physical fitness area.

5.  On 17 May 1977, the applicant underwent a physical examination.  The applicant noted a variety of ailments in his Report of Medical History, including his back pain.  The evaluating physician, however, found the applicant medically qualified for separation processing with a physical profile of 1-1-1-2-1-1.  The “2” represented his bilateral hearing loss.

6.  On 31 May 1977, the applicant’s unit commander initiated action to administratively separate the applicant from active duty under the provisions of Army Regulation 635-200, Chapter 5 (Expeditious Discharge Program).  The commander cited the applicant’s poor attitude, lack of motivation, lack of self-discipline, and record of Uniform Code of Military Justice (UCMJ) action for failure to repair and failure to obey a lawful order.  The commander recommended that the applicant receive a general discharge under honorable conditions.

7.  The applicant acknowledged receipt of the proposed separation action and voluntarily consented to the discharge.  He waived his right to submit statements on his own behalf.

8.  On 7 June 1977, the appropriate separation authority approved the recommendation for administrative separation and directed that the applicant receive a General Discharge Certificate.
9.  The applicant’s final performance evaluation report, rendered on 10 June 1977, noted the applicant felt he had a medical problem with his back and that he could not or would not carry out the advice of qualified medical doctors to improve his condition.  Members of his rating chain, however, indicate the applicant did outstanding work at times, but overall, his work was below his potential.

10.  On 10 June 1977, the applicant was released from active duty under the provisions of the Expeditious Discharge Program (EDP).  He had completed       1 year, 9 months, and 6 days of active Federal service.  His service was characterized as under honorable conditions.

11.  Army Regulation 635-200 provides the policy and sets forth the procedure for the administrative separation of enlisted personnel.  Paragraph 5-37, then in effect, provided for the EDP.  This program provided for the discharge of individuals who had completed at least 6 months, but less than 36 months, of active duty and who demonstrated by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential that they could not or would not meet acceptable standards.  Such personnel were issued a general or honorable discharge, as appropriate.

12.  Army Regulation 40-501 (Standards of Medical Fitness) provides, in pertinent part, that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) contains guidance on standards of unfitness because of physical disability.  It states, in pertinent part, 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  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.  





14.  That same regulation states that commanders may refer members to the servicing medical treatment facility for medical evaluation when it is believed that the member is unable to perform the duties of his office, grade, rank, or rating because of physical disability.  Commanders of medical treatment facilities who are treating patients in an assigned, attached or outpatient status may also initiate action to evaluate a member’s physical ability to perform the duties of his office, grade, rank, or rating.

15.  Army Regulation 635-40 also states 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.  While the evidence of record does confirm the applicant was treated on multiple occasions for back pain, there is no evidence available, and the applicant has not provided any, that shows his back condition rendered him unfit.

2.  The applicant’s unit commander, or any of the medical professionals involved in the applicant’s medical treatment, could have initiated actions to refer the applicant for disability processing.  The fact that he was never referred for disability processing is evidence that his back condition was not sufficiently disabling to warrant such processing.  It is noted that during the applicant’s final physical examination in May 1977 the evaluating physician concluded the applicant’s back condition did not even warrant a profile rating.

3.  The applicant’s argument that he was not informed of his “eligibility to undergo a medical board” is without foundation.  The decision to undergo disability processing is not one an individual Soldier can make.

4.  The evidence shows the applicant was discharged as a result of his inability to live up to the expectations of a Soldier and not as result of any disabling medical condition.

5.  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 has failed to submit evidence that would satisfy the aforementioned 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.




      _______ _   _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)                                         AR20090004137



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ABCMR Record of Proceedings (cont)                                         AR20090004137



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