IN THE CASE OF:	

		BOARD DATE:	  04 March 2010

		DOCKET NUMBER:  AR20090009178 


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 that he be issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period he was in Korea from 19 April 1977 through 3 July 1979 to show he was medically discharged.  

2.  The applicant states he was hospitalized at the 121st Evacuation Center for seizure disorders, hearing problems, and mental disorders.  He states he was medically evacuated from Korea to the Eisenhower Medical Center.  He states he was offered a medical discharge while at Fort Gordon, GA; however, he wanted to stay in the military.  He did not understand why he was offered a medical discharge or the ramifications of accepting a medical discharge.  He states he had numerous medical issues throughout his second enlistment.  He admits he was frequently absent without leave (AWOL) due to his mental conditions and that he has tried to work since being discharged, but he has been unable to hold a job.

3.  The applicant provides copies of numerous documents from his service personnel records 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 U.S. Army Reserve on 21 March 1973 for a period of 6 years.  

3.  The applicant was ordered to active duty for training (ADT) on 26 July 1973 and was released from ADT on 29 January 1974 under the provisions of Army Regulation 635-200, paragraph 5-17.  On the following day, he was transferred back to his Reserve unit.  He was issued a DD Form 214 for the period ending 29 January 1974 which shows he completed 6 months and 4 days of active service this period.  

4.  Prior to his release from ADT, the applicant underwent a physical examination and was found qualified for separation with a physical profile of 111211.  

5.  On an unknown date, the applicant was placed on temporary profile for seizure disorder with a physical profile of 311111.

6.  A letter, dated 15 March 1977, shows the applicant was informed he was being placed on active duty due to unsatisfactory participation in the U.S. Army Reserve.  On 15 March 1977, orders were published ordering the applicant to active duty for a period of 16 months and 28 days and assignment to Korea.  His reporting date was 19 April 1977.  

7.  The applicant was assigned to the 2nd Infantry Division in Korea on 23 May 1977.

8.  On 4 August 1977, the applicant was placed on a temporary profile for low back strain and seizures with a physical profile of 311111.  His DA Form 3349 (Medical Condition – Physical Profile Record) indicated he was medically qualified for duty.  His assignment restrictions were indicated as light duty, no heavy lifting for 1 week, and no field duty (no time limitation).  

9.  A Personnel Action, dated 27 October 1977, shows the applicant was medically evacuated to the 121st Evacuation Hospital on 26 October 1977.  


10.  On 31 October 1977, the applicant was placed on a temporary physical profile for acute intoxication with a physical profile of 111112.  His DA Form 3349 indicated he was medically qualified for duty.  His assignment restriction was indicated as “Code U” (career counseling).  

11.  A Clinical Record Cover Sheet, dated 31 October 1977, shows the applicant’s diagnoses as mild acute intoxication, sprained left wrist, and seizure disorder.  

12.  He departed Korea on or about 8 December 1977.

13.  On 16 December 1977, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for failing to go to his appointed place of duty.  

14.  The evidence of record shows the applicant was hospitalized at Fort Gordon, for a period of 60 days from 6 January 1978 to 23 March 1978.

15.  On 9 March 1978, the applicant accepted NJP under Article 15 for being AWOL from the Medical Holding Company, Eisenhower Army Medical Center, Fort Gordon from 24 February to 7 March 1978.  

16.  The applicant departed AWOL on 5 July 1978.  There is no evidence which indicates the applicant was issued a DD Form 214 after this period of AWOL.  

17.  Orders 29-39 published on 7 November 1979 show the applicant was dropped from the rolls of the Army effective 7 November 1979 by direction of the Secretary of the Army pursuant to Army Regulation 630-10 (AWOL, Desertion, and Administration of Personnel Involved in Civilian Court Proceedings).  These orders show he was assigned to the Maintenance Battery, 1st Battalion, 77th Field Artillery, 1st Cavalry Division, Fort Hood, TX at that time. 

18.  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 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 determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board.
19.  Paragraph 3-1 of Army Regulation 635-40 provides 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 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.

20.  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.  Numerical 
designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  

21.  Army Regulation 630-10 defines “dropped from the rolls of the Army” as an administrative action further dropping a Reserve Component absentee who has been dropped from the rolls from the strength accountability of the Army (Title 10, U.S. Code, section 126684).  This severs all military status.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was offered a medical discharge while he was at Fort Gordon.  However, there is no evidence available which substantiates his claim.  

2.  The evidence of record confirms the applicant was diagnosed with mild acute intoxication, a sprained left wrist, and seizure disorder.  However, there is no 


evidence that the applicant’s medical conditions required processing through medical channels or that it was the cause of his misconduct (AWOL).  

3.  The evidence of record shows the applicant departed AWOL in July 1978 and was dropped from the rolls of the Army in November 1979.  There is no evidence his military career ended due to medical unfitness.

4.  Army Regulation 630-10 specifies that being dropped from the rolls of the Army is an administrative action further dropping a Reserve Component absentee who has been dropped from the rolls, from the strength accountability of the Army, which serves all military status.  

5.  The preponderance of evidence shows the applicant’s medical conditions did not render him medically unfit to perform his duties or justify physical disability processing.  The applicant has failed to provide evidence to support granting his request.  In any case, it appears he did not remain under military control long enough for any medical processing to start/continue.

6.  Therefore, there is no basis for issuing the applicant a DD Form 214 for the period 19 April 1977 through 3 July 1979 to show he was medically discharged.  

7.  In addition, from the available evidence of record it appears the applicant may never have been reported as returned to military control and discharged from the Army.  If he has indeed never returned to military control, he may want to consider contacting the nearest military installation and turning himself in.  

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)                                         AR20090009178



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ABCMR Record of Proceedings (cont)                                         AR20090009178



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