IN THE CASE OF:	  

		BOARD DATE:	  25 August 2009

		DOCKET NUMBER:  AR20090006136 


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, that his discharge under other than honorable conditions be changed to a medical discharge.

2.  The applicant states that he needs a medical discharge because of his feet.  He contends that he was born with deformed feet but he passed the entrance physical examination and he competed basic combat training and advanced individual training.  He indicates that he started having trouble with his feet when he arrived at Fort Stewart, Georgia.  He goes on to state that he went to the doctor and was given a profile with limited standing and walking; however, his sergeant ignored his profile and made him perform duties.  He claims that he left because he was tired of suffering with his feet.       

3.  The applicant provides no documentary evidence in support of his 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 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 enlisted in the Regular Army on 28 May 1980.  He successfully completed basic combat training and advanced individual training in military occupational specialty 11B (infantryman).

3.  On 19 November 1980, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 11 November 1980 to 
19 November 1980.  His punishment consisted of a reduction to E-1 (suspended), a forfeiture of pay, and extra duty.

4.  On 19 January 1981, the applicant went AWOL and returned to military control on 16 March 1981.  He went AWOL again on 11 May 1981 and returned to military control on 30 November 1989.   

5.  On 12 December 1989, the applicant signed a Medical Examination for Separation Statement of Option which states, "I understand that I am not required to undergo a medical examination for separation from active duty.  If I elect not to undergo a separation examination, I also understand that my medical records will be reviewed by a physician at the appropriate medical treatment facility; and if the review indicates that an examination should be accomplished, I will be scheduled for examination based on the results of the review.  I do not desire a separation medical examination."  Apparently, his medical records were reviewed by competent medical authorities and it was determined that a medical examination for separation was not required.

6.  A DA Form 5181-R (Screening Note of Acute Medical Care), dated 
14 December 1989, shows the applicant was evaluated for complaints of pain in both feet.  The form states that the applicant complained of his feet hurting for 
9 years and that he could not wear boots.  The form also notes that his "feet are somewhat deformed."  A podiatrist consultation was recommended.  No other medical records are available.  

7.  On 15 December 1989, charges were preferred against the applicant for the AWOL period (11 May 1981 to 30 November 1989).

8.  On 15 December 1989, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He indicated in his request that he understood he might be discharged under other than honorable conditions and furnished an under other than honorable conditions discharge, that he might be ineligible for many or all benefits administered by the Department of Veterans Affairs, that he would be deprived of many or all Army benefits, and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to make a statement in his own behalf.

9.  The applicant's DA Form 2A (Personnel Qualification Record, Part I), dated 
18 December 1989, shows the applicant's physical profile was 111111.

10.  On 4 January 1990, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge under other than honorable conditions.

11.  Accordingly, the applicant was discharged under other than honorable conditions on 21 February 1990 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial.  He had served 11 months and 29 days of active service with 3190 days of lost time due to AWOL.

12.  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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

13.  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.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that the mere presence of an 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, or rank.  It 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.  When a Soldier is being processed for separation 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 indicates that a Soldier is fit.

15.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):  
P-physical capacity or stamina, U-upper extremities, L-lower extremities, 
H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant declined a separation medical examination on 12 December 1989.  It appears his medical records were reviewed by competent medical authorities and it was determined a medical examination for separation was not required.  In addition, his DA Form 2A, dated 18 December 1989, shows his physical profile was 111111.
  
2.  Since there is no evidence of record to show the applicant was ever medically unfit to perform his military duties, there is no basis for granting a medical discharge.

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)                                         AR20090006136



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090006136



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1