BOARD DATE:	  17 November 2009

		DOCKET NUMBER:  AR20090006439


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 separation or retirement.

2.  The applicant states, “Hearing Condition, Spot on Lung, Sleep disorder, Stomach condition, stress disorder, swelling in leg and feet, Right Index finger.”  He adds, “I went to the Doctor for this when I was in the Army and it should be in my Record.”

3.  The applicant provides no additional documentation 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.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  The applicant’s records show heat and water damage from that fire.  However, there were sufficient documents remaining in the record for the Board to conduct a fair and impartial review of this case.

3.  The applicant was inducted into the Army of the United States for 2 years on 15 March 1967.  His pre-induction physical examination noted the absence of his right index finger.

4.  The applicant took basic combat training at Fort Benning, GA and infantry advanced individual training at Fort Jackson, SC.  He was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman) and he was ordered to Vietnam.

5.  The applicant arrived in Vietnam on or about 21 August 1967 and he was assigned to Company C, 3rd Battalion, 22nd Infantry, 3rd Brigade, 25th Infantry Division.  He departed Vietnam on or about 12 December 1967 for duty in Korea in MOS 76A (Supply Clerk).

6.  The applicant returned to the United States on or about 28 October 1968 and he was honorably released from active duty that date.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining service obligation.

7.  The applicant’s Standard Form (SF) 88 (Report of Medical Examination) and SF 89 (Report of Medical History) reveal a scar on his forehead, secondary to a childhood burn, and a missing right index finger which was amputated prior to his induction.  It also reveals a varicocele on his left testicle.  The examination was otherwise unremarkable.  In his SF 89, the applicant indicated he had headaches, a deformity [missing finger], a painful shoulder [applicant fractured his clavicle in 1966 as a civilian], and that he used drugs and alcohol.

8.  Title 10, U.S. Code, chapter 61 provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency (USAPDA), under the operational control of the Commander, U.S. Army Human Resources Command (USAHRC), Alexandria, VA, is responsible for operating the Physical Disability Evaluation System (PDES) and executes Secretary of Army decision-making authority as directed by Congress in Title 10, U.S. Code, chapter 61, and in accordance with DoD 

Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The objectives of the PDES are to maintain an effective and fit military organization with maximum use of available manpower; provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability; and to provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected.  A Soldier is referred into the PDES when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a medical evaluation board (MEB); receive a permanent medical profile and are referred by an MOS/Medical Retention Board (MMRB); are command-referred for a fitness for duty medical examination; or referred by the Commander, USAHRC.

9.  Army Regulation 635-40 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 or her office, grade, rank, or rating.  It provides for MEBs, 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.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

10.  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 Veterans Affairs Schedule for Rating Disabilities (VASRD).  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.

11.  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.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.




DISCUSSION AND CONCLUSIONS:

1.  The applicant requests, in effect, disability separation or retirement.

2.  There is no evidence of record and the applicant has not provided any evidence, that he was ever referred to the Army’s PDES for disability processing. His specific complaints are not documented in his separation physical examination and he was found qualified for separation without referral to the PDES.

3.  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 this requirement.

4.  Based on the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090006439



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ABCMR Record of Proceedings (cont)                                         AR20090006439



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