IN THE CASE OF:	  

		BOARD DATE:        21 July 2009

		DOCKET NUMBER:  AR20090004589 


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 reconsideration of his earlier request for an upgrade of his under other than honorable conditions discharge and correction of his records to show he was medically discharged.

2.  The applicant states, in effect, that he received injuries that were not included in his separation process. 

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty), dated 19 February 1975; a copy of the original Board for Correction of Military Records Memorandum of Consideration, dated 25 May 1994; and copies of his medical records; reports; charts; and consult sheets, dated on various dates throughout his military service, 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 requested reconsideration of his earlier request for an upgrade of his discharge.  Army Regulation 15-185 sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it has not previously been reconsidered.  The staff of the ABCMR reviewed the applicant's request for reconsideration and determined that his request for reconsideration was not received within one year of the ABCMR's original decision.  As a result, his request for reconsideration of his request to upgrade his discharge does not meet the criteria outlined above, and this portion of his request will not be discussed further in the Record of Proceedings.

3.  The applicant's records show he enlisted in the Regular Army for a period of 2 years on 31 January 1973.  He completed basic combat and advanced individual training and was awarded military occupational specialty 12C (Bridge Specialist).  

4.  On 13 February 1975, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations) and directed that he receive an Undesirable Discharge Certificate, and that he be reduced to the lowest enlisted grade.  On 19 February 1975, the applicant was accordingly separated for the good of the service with an undesirable discharge.  He had completed a total of 2 years, and 18 days of creditable active military service.

5.  The applicant submitted copies of his medical records, reports, charts, and consult sheets, dated on various dates throughout his military service that show he visited various clinics and/or military treatment facilities for routine medical problems to include fever, chest pain, a sprained back, shaving profile, and foot pain.  However, there is no indication in his records that he was issued a permanent physical profile or that any of his routine medical issues warranted an entry into the Physical Disability Evaluation System (PDES).

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  

7.  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 (MEBD) determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB).  Paragraph 3-1 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 their duties and assign an appropriate disability rating before they can be medically retired or separated.

8.  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 his records should be corrected to show he was medically discharged.

2.  The evidence of record shows the applicant conducted routine visits to military treatment facilities for various illnesses and/or injuries throughout his military service.  However, there is no evidence in the available record and the applicant 

did not provide any evidence that show he had an illnesses that warranted processing through the PDES.  Therefore, he was not considered by a MEBD.  Without an MEBD, 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.

3.  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.  

4.  The Army must find that a Soldier is physically unfit to reasonably perform the duties associated with his rank, grade or specialty and assign an appropriate disability rating before he can be medically separated.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the PDES.

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 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.




      _______ _   __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)                                         AR20090004589



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ABCMR Record of Proceedings (cont)                                         AR20090004589



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