IN THE CASE OF:	  

		BOARD DATE:	  13 August 2009

		DOCKET NUMBER:  AR20090005769 


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 retired and that his reenlistment (RE) code be corrected from RE-1 to a medical RE code.

2.  The applicant states that he was unable to go back to a combat zone because of his medical injuries.  He went on search and destroy missions and guarded bridges.  However, toward the end of September 1967, he was standing in line awaiting his turn to get paid when a 2 1/2 ton truck came across the bridge at a high speed and hit him.  He was medically evacuated by helicopter to the Philippines and then on to Japan where he spent three months in a hospital.  He was then reevaluated and was found medically incapable of going back to a combat zone.  He was reassigned to a headquarters unit in Korea where he spent the rest of his tour and he was subsequently discharged. 

3.  The applicant provides a copy of page 3 of his 4-page DA Form 20 (Enlisted Qualification Record); a copy of his Veterans Administration (VA) Outpatient Medical Treatment Card; a copy of his Selective Service System (SSS) Form 110 card; and a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 13 August 1968, 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 records show he was inducted into the Army of the United States on 20 September 1966.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11D (Armor Intelligence Specialist).

3.  The applicant's records also show he arrived in the Republic of Vietnam on 
10 August 1967 and was assigned to B Troop, 2nd Squadron, 1st Cavalry Regiment, 2nd Armored Division.

4.  On 30 September 1967, while standing on a bridge, a truck trailer momentarily swerved out of control and ran over his foot.  He suffered a fractured right cuboid, a laceration to his back, and multiple contusions and abrasions.  He was initially treated at the 18th Surgical Hospital in Vietnam and was later transferred to the 249th General Hospital, Japan, on 10 October 1968.  He remained in Japan until fully recovered.

5.  On 5 February 1968, he was reassigned to Headquarters Company, 51st Signal Battalion, Korea, and performed duties of a light vehicle driver (MOS 64C).  He was also awarded MOS 64C on 24 July 1968.

6.  On 18 July 1968, the applicant underwent a separation medical examination. He indicated that he had previously suffered a broken bone in the right foot, but was determined by a military medical physician to be otherwise qualified for separation.

7.  He was honorably released from active duty on 13 August 1968 by reason of normal expiration of his term of service and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) for completion of his Reserve obligation.  The DD Form 214 he was issued shows he completed 1 year,
10 months, and 24 days of creditable active military service.  Item 11c (Narrative Reason for Separation) shows he was separated under the provisions of Section VII, chapter 5, Army Regulation 635-200 (Personnel Separations) as an overseas returnee and item 15 (Reenlistment Code) shows the entry "RE-1." 
8.  There is no indication in the applicant's records that he was issued a permanent physical profile for his injury or that he underwent a medical evaluation with subsequent referral to a medical evaluation board (MEBD) and/or a physical evaluation board (PEB). 

9.  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.

10.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.  Section 1212 provides that a member separated under section 1203 is entitled to disability severance pay.  Additionally, Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.

11.  Department of Defense Instruction (DODI) 1332.38 implements policy and prescribes procedures for retiring or separating service members because of physical disability.  This instruction provides, in pertinent part, that a service member shall be considered unfit when the evidence establishes that the member, due to physical disability, is unable to reasonably perform the duties of his/her office, grade, rank, or duties, to include duties during a remaining period of Reserve obligation.  All relevant evidence will be considered in assessing a service member's fitness.  To reach a finding of unfit, the PEB must be satisfied that the information it has before it supports a finding of unfitness.

12.  If the evidence establishes that the service member adequately performed his/her duties until the time he/she was referred for physical evaluation, the service member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty.  That instruction goes on to say that except for service members previously determined unfit and continued in a permanent limited duty status, service members who are pending retirement at the time they are referred for physical disability evaluation enter the disability evaluation system under a rebuttal presumption that they are physically fit.  The disability evaluation system compensates disabilities when they cause or contribute to career termination.  Continued performance of duty until a service member is separated or retired creates a rebuttal presumption that a service member’s medical conditions have not caused career termination.

13.  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 Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  

14.  Army Regulation 635-5 (Separations Document) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  In establishes standardized policy for the preparation of the DD Form 214.  In pertinent part, it states that the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  The version in effect at the time mandated the entry of the appropriate RE code in item 15.

   a.  An RE-1 was used for members who were fully qualified for immediate reenlistment.
   
b.  An RE-1A was used for members who were fully qualified for reenlistment 
but ineligible to reenlist for 93 days after date of their discharge.

   c.  An RE-2 was used for members fully qualified for reenlistment but separated for the convenience of the Government under a separation which did not contemplate immediate reenlistment.
   
   d.  An RE-2A was used for members fully qualified for reenlistment but ineligible for reenlistment in a grade authorized for enlistment within 3 months of the date of discharge.
   
   e.  An RE-3 was used for members ineligible for reenlistment unless a waiver was granted.
   
   f.  An RE-3A was used for members ineligible for reenlistment unless a waiver for a specific test score was granted.
   
   g.  An RE-3B was used for members ineligible for reenlistment without a waiver for lost time.
   
   h.  An RE-4 was used for member s ineligible for reenlistment due to non-waiverable qualification.
   
   i.  An RE-4A was used for members ineligible for reenlistment due to lack of citizenship. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should have been medically retired and received a medical RE code.

2.  The evidence of record shows the applicant sustained an injury in the Republic of Vietnam that warranted his medical evacuation to Japan where he received treatment and he was returned to duty in Korea.  He was awarded a new MOS and he was reassigned to another location (Korea) where he was able to perform the duties required of his grade, office, or MOS until he was honorably released from active duty upon completion of his active service.  He was honorably released from active duty for completion of his term of service with no disqualifying reasons.  Therefore, he received the appropriate RE code. 

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 applicant was honorably released from active duty for completion of his term of service. There is no evidence that he was forced out or denied a medical retirement.  Furthermore, there is no evidence in the available records and the applicant did not submit any substantiating evidence that shows he was issued a permanent profile or that he underwent an MEBD or PEB.  The Army must find that a Soldier is physically unfit to reasonably perform his/her duties and assign an appropriate disability rating before he/she can be medically retired or separated.

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)                                         AR20090005769



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ABCMR Record of Proceedings (cont)                                         AR20090005769



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