IN THE CASE OF:
BOARD DATE: 4 February 2010
DOCKET NUMBER: AR20090011036
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 military records be corrected to show that he was medically discharged.
2. The applicant states he only got out of the Army because he had post-traumatic stress disorder (PTSD); chronic knee, neck, and back pain; and a hiatal hernia.
3. The applicant provides no additional evidence 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 applicants 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 applicants 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 military records show that he enlisted in the Regular Army on 10 July 2000 for a period of 4 years. He completed initial entry training and was awarded military occupational specialty 92F (Petroleum Supply Specialist). He served in Korea from 2 January 2001 to 4 January 2003, then was reassigned to Fort Huachuca, Arizona. He served in Kuwait and Iraq from 14 February 2003 to 11 December 2003, then returned to Fort Huachuca where he served until he was honorably released from active duty on 9 July 2004.
3. The applicant's official military personnel file does not contain any evidence showing that he was awarded a medical profile or had a medical condition which warranted processing through the Army Physical Disability Evaluation System (PDES).
4. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides, in pertinent part, that disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. This regulation also provides, in pertinent part, that when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his military records should be corrected to show that he was medically discharged.
2. While the sincerity of the applicant's claim that he got out of the Army with PTSD and other medical ailments is not questioned, there is no evidence in the available records and the applicant failed to provide evidence which shows that he should have been processed through the Army PDES for PTSD or any other medical condition which might have resulted in being medically discharged. Absent evidence which shows that he failed to perform his assigned duties commensurate with his rank until he was scheduled for separation, there is a presumption that he was fit.
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. In view of the foregoing, there is insufficient basis for granting relief to the applicant in this case.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X___ ____X___ ____X___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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.
2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by him in service to the United States during Operation Iraqi Freedom. The applicant and all Americans should be justifiably proud of his honorable service in arms.
____________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) AR20090011036
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