IN THE CASE OF:	  

		BOARD DATE:	      10 November 2009

		DOCKET NUMBER:  AR20090010398 


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 his records be corrected to show his narrative reason for separation is physical disability.

2.  The applicant states that he was not in good health at the time of his discharge.  He did not fill out the paperwork for his medical examination the doctor filled it out.  The doctors fraudulently said that he was in good health.  

3.  The applicant provides, in support of his application, a copy of the cover page of his VA Rating Decision, dated 17 March 2009. 

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 7 April 1978, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 11B (Infantryman).  He served through a series of reenlistments, performing duty both in the United States and overseas.

3.  On 2 December 1994, the applicant requested separation under the provisions of the fiscal year 1995 Voluntary Incentive Program.  On or about 
6 December 1994, his request was approved by the appropriate authority.  

4.  On 30 June 1995, the applicant was released from active duty and transferred to the United States Army Reserve Control Group (Reinforcement).  His 
DD Form 214 indicates that he was separated under the Early Release Program with a special separation benefit (SSB).  He had attained the rank of sergeant first class, pay grade E-7, and had completed 17 years, 2 months and 24 days of creditable active duty.

5.  The applicant's service medical records are not available for review.

6.  The applicant’s DA Form 2A (Personnel Qualification Record - Part I), dated
6 February 1995, shows his physical profile as 1-1-1-1-1-1, and his physical category as "A."

7.  Army Regulation 40-501, chapter 7, physical profiling, 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.  Numerical designator "4" indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator "4" does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40.


8.  Army Regulation 40-501, Table 7-2, Profile Codes, shows that Code A states: "No assignment limitations."  "Considered medically fit for initial assignment under all PULHES factors for Ranger, Airborne, Special Forces training, and training in any MOS."

9.  Army Regulation 635-40 provides, in pertinent part, that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit.  This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time 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.

10.  The cover page of the applicant's VA Rating Decision, dated 17 March 2009, states that he was awarded service connection for Meniere's disease claimed as vertigo, tinnitus and bilateral hearing loss.  He was rated 30 percent disabled with an effective date of 26 July 2006.  The applicant was also granted service connection for erectile dysfunction with a rating of zero percent disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was not in good health at the time of discharge, therefore, his narrative reason for separation should be changed to physical disability.  He further contends that the doctors were fraudulent in their assessment of his medical condition. 

2.  The evidence of record shows the applicant requested an early separation with a special separation benefit.  

3.  There is no evidence available showing the applicant had a medical condition that was unfitting for retention.  His personnel records indicated that he was fit for duty with a category A profile.  Accordingly, there was no basis for a medical retirement or separation.  

4.  The applicant has not provided any documentary evidence, other than his own statement indicating that the doctors were fraudulent in assessing his medical condition. 

5.  The VA rating decision provided by the applicant indicates that he was awarded a service connected disability effective 26 July 2006.  This is approximately 11 years after his separation from active duty.
6.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA has neither the authority nor the responsibility for determining medical unfitness for military duty.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he can be medically retired or separated.

7.  In view of the above, the applicant's request should be denied.

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)                                         AR20090010398



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ABCMR Record of Proceedings (cont)                                         AR20090010398



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