IN THE CASE OF:	  

		BOARD DATE:	       4 AUGUST 2009

		DOCKET NUMBER:  AR20090007113 


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, correction of his official military records to show that he was retired by reason of a physical disability rated at 30 percent or more.

2.  The applicant states he should have been furnished a medical discharge with medical benefits and a pension.  He states that he broke seven ribs during a parachute jump at Sicily drop zone.  He states that he was medically airlifted to a United States Army Hospital at Fort Bragg, North Carolina.

3.  The applicant provides no additional documentation.

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.  On 10 May 1971, the applicant was inducted into the Army in Oakland, California.  He successfully completed his training as an infantry indirect fire crewman.  He was promoted to the pay grade of E-2 on 10 August 1971 and he was promoted to the pay grade of E-3 on 15 December 1971.

3.  The applicant’s records show that he was assigned to Headquarters and Headquarters Company, 1st Battalion (Airborne), 504th Infantry Regiment, 82nd Airborne Division, Fort Bragg, North Carolina, when nonjudicial punishment (NJP) was imposed against him on 2 March 1972 for willfully disobeying a lawful order.  His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay in the amount of $50.00 per month for 1 month, extra duty for 7 days, and restriction for 7 days.

4.  On 13 April 1972, the applicant was seen in neurosurgical consultation at Memorial Hospital, Phoenix, Arizona, for an evaluation due to a head injury.  Hospital notes show that he was admitted through the emergency room for a car accident and that he was the driver of the vehicle.  The attending physician noted that apparently the applicant was unconscious immediately following the accident and that at the time of his arrival in the emergency room, he was confused, somnolent, confused as to time and place, and uncooperative.  The applicant was diagnosed with a brain concussion, a superficial scalp injury, and blunt trauma to the abdomen.  The physician’s comments show that the applicant was to be admitted to the intensive care unit for observation.

5.  On 18 May 1972, NJP was imposed against the applicant for two specifications of failure to go at the time prescribed to his appointed place of duty.  His punishment consisted of correctional custody for 7 days.

6.  The applicant was convicted by a special court-martial on 6 November 1972 of wrongfully appropriating a 1971 "Chevelle" Malibu.  He was sentenced to confinement for 1 month, a reduction to the pay grade of E-1, a forfeiture of pay in the amount of $75.00 per month for 3 months, and restriction for 30 days.

7.  The applicant was released from active duty under honorable conditions on 29 June 1973 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 4, at the expiration of his term of service.  He was transferred to the United States Army Reserve Control Group (Annual Training) to complete his Reserve obligation.

8.  A review of the available records does not show that the applicant broke seven of his ribs during a parachute jump while he was in the Army.

9.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-3b(1), as amended, provides 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.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 2-2b, as amended, provides 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.  The applicant contends that his records should be corrected to show that he was retired by reason of a physical disability rated at 30 percent or more.

2.  His contentions have been noted.  However, in accordance with the applicable regulation, 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.  The evidence contained in the applicant's records does not show that he was unfit to perform his duties while he was in the Army.

3.  There is no evidence in the available record, nor has the applicant submitted any evidence, to show that he had a medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

4.  In order to justify correction of a military record the applicant must show 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.

5.  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.



      _________XXX________________
                 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)                                         AR20090007113



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ABCMR Record of Proceedings (cont)                                         AR20090007113



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