IN THE CASE OF:	  

		BOARD DATE:	  29 December 2009

		DOCKET NUMBER:  AR20090010260 


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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be changed to show he was medically retired.

2.  The applicant states that at the time of his discharge he should have been medically retired instead of just being separated.  He also states that he was not given the opportunity to appear before a proper physical evaluation board (PEB) to determine if he should be medically retired instead of discharged.  He continues to state that he was held in the military for 107 days past his expiration of term of service (ETS) while recovering from the wounds he received in battle and was given a Purple Heart.  He further states that according to the PEB [actually medical evaluation board (MEBD)) he was found fit to return to duty with assignment limitations but a medical opinion recommended that he be separated. 
He states that after his discharge he was transferred to the U.S. Army Reserve (USAR) Control Group until 7 June 1969 and did not receive his DD Form 214.  He states that he does not understand why his record states that he wished to be separated since he was unable to speak at the time.  He concludes by stating that he should have been given the benefit of consideration for a medical retirement instead of discharged in 1969.

3.  The applicant provides a copy of his DD Form 214 in support of this 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's DD Form 214 shows he enlisted in the Regular Army on 8 June 1963.

3.  Item 27 (Wounds Received as a Result of Action with Enemy Forces) of the applicant's DD Form 214 shows "Vietnam, 16 November 1965."

4.  The applicant submitted a copy of a document, dated 8 September 1966, which states in "Recommendations" that he be separated from the service as it was his desire to be separated since he was past his ETS.  The applicant was given a permanent "3" profile and determined to be fit for duty with limitations.

5.  On 8 September 1966, the applicant underwent an MEBD for the following:

	a.  wound, missile, gunshot perforating, lower face, with involvement of the inferior alveolar artery and nerve, bilateral;

	b.  fracture, open, comminuted, body of mandible, bilateral, involving tooth number 31 with nerve and artery involvement and retained foreign body;

	c.  avulsion, alveolar process of mandible, bilateral, and teeth numbers 19, 20, and 30;

	d.  amputation, traumatic, distal one-third of tongue, with moderate disturbance in speech and mastication and tongue mobility

	e.  scar of mandibular region, bilateral, due to trauma, minimal, non-disfiguring;

	f.  scar of neck, hypertrophic, following tracheostomy, moderately disfiguring;

	g.  periodontoclasia, area tooth number 29;

	h.  prostatitis, acute, minimal, organism unknown;

	i.  coloboma of iris, partial, right, secondary to trauma in 1955; and

	j.  corneal scar, right, secondary to trauma in 1955.

6.  The MEBD recommended the applicant be returned to duty and given no assignments that required the use of field telephones or that required clear sound speech.  Item 25 (Action by the Patient) shows that the applicant concurred with findings of the board as attested to by his initials showing that he lined through the remark, "I do not agree with the board's actions and desire to appeal."

7.  On 22 September 1966, the applicant was released from active military service and transferred to the USAR Control Group by reason of his ETS.  The applicant completed 3 years, 3 months, and 15 days of creditable active service.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to an MEBD.  Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant appeared before an MEBD and the board recommended that he return to duty with some assignment limitations.  He may have required some activity limitations but he was not medically unfit for retention.  The evidence of record also shows that the applicant did not contest the findings of the MEBD.

2.  The evidence of record shows that the applicant was transferred to the USAR Control Group by reason of his ETS.  There is no evidence in the record and the applicant failed to provide evidence that shows his medical condition warranted consideration by a PEB.  Without a PEB, the applicant could not have been issued a medical discharge.  Consequently, there is no basis for granting the applicant's request to correct his records to show that he was medically retired.

3.  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 that requirement.

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)                                         AR20090010260



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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