IN THE CASE OF:	

		BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090012941 


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 honorable discharge be changed to a medical discharge.

2.  The applicant states he would like a medical discharge based on the injuries he received in a car accident.  He states his medical records document the scars and injuries he had when he exited the Army.  He states he was not in the same physical condition that he was when he entered the Army.

3.  The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), his separation examination, his chronological record of military service, six pages from his service dental records, and three pages from his service medical 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's military personnel records show he enlisted in the Regular Army on 10 July 1959 for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded military occupational specialty (MOS) 911 (Medical Specialist).  He reenlisted on 10 July 1962 for a period of 3 years.

3.  On 20 June 1964, the applicant was assigned to the U.S. Army Hospital at Fort Polk, LA, as an operating room specialist.  

4.  On 4 August 1964, the applicant was admitted to the U.S. Army Hospital at Fort Polk with bi-mandibular fractures of the right mandible (lower jaw), fracture right mandibular angle, fractures of the right mandibular parasymphyseal area, comminuted maxillary fracture, fracture nasal bones, fracture right zygomatic bone (a bone of the side of the face below the eye), lacerations of oral muccosa and left eye lid, tracheotomy, and sutured lacerations.

5.  On 23 October 1964, the applicant was awarded the MOS of 913 (Operating Room Specialist) and proficiency pay at the P1 level effective 7 August 1964.

6.  On 3 November 1964, the applicant's status at Fort Polk Army Hospital was changed to patient status.

7.  On 6 January 1965, the applicant was assigned to Madigan General Hospital, Tacoma, WA, as an operating room specialist.  On 19 February 1965, the applicant's proficiency pay was continued at the P1 level.

8.  On 12 June 1965, the applicant received a separation examination.  This examination documents a deformity of the right mandibular due to loss of teeth, fracture of the mandible, maxilla, and left femur (the proximal bone of the hind or lower limb that is the longest and largest bone in the human body extends from the hip to the knee, also called the thigh bone).  The examination also documents numerous scars.  His physical profile is shown as a numerical designator of "1" in all six factors in the PULHES portion of the examination.

9.  On 9 July 1965, the applicant was discharged by reason of the expiration of his term of service.  He had served a total of 6 years of active service that was characterized as honorable.

10.  The applicant also provided a copy of the status of his ongoing disability claim with the Department of Veterans Affairs (VA).

11.  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.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Separation, or Retirement for Physical Disability), then in effect, provided that when a medical examination indicated that hospitalization was necessary, the commanding officer would order the member to the nearest hospital for observation, treatment, and appropriate disposition.  The principal function of the medical evaluation board was to evaluate the condition and recommend appropriate disposition of those patients whose cases were referred for its action.  When the approved action of the medical evaluation board did not provide for either final medical disposition of the case or deferment of disposition pending transfer of further observation, the case was referred to the jurisdiction of a physical evaluation board for disposition.  In addition, the regulation provided that whenever it appeared that a member was medically unfit for active duty his case would be referred to a physical evaluation board for disposition.

13.  Title 38, U.S. Code, provides for the VA to make a determination and award compensation for disabilities which were incurred in or aggravated by active military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his honorable discharge should be changed to a medical discharge based on his injuries and the scars received as a result of those injuries received in a car accident on 4 August 1964.

2.  The applicant's injuries and scars are well documented in his service medical records.  However, there is no evidence of record that would indicate the applicant was not able to perform the duties of his MOS and his rank.  The fact that his proficiency pay was continued indicates he was performing his duties in his rank and MOS in a satisfactory manner.

3.  The numerical designator "1" under all factors in the PULHES on his separation examination indicates the applicant was medically fit for any military assignment.

4.  Therefore, there is no evidence to show the applicant would have been referred to a medical board or determined to be unfit for further military service.

5.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s employability.  Accordingly, it is not unusual for the VA to award a veteran a disability rating when the veteran was not separated due to physical unfitness.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, awarding and/or adjusting the percentage of disability of a condition based upon that agency’s examinations and findings.

6.  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 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)                                         AR20090012941



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ABCMR Record of Proceedings (cont)                                         AR20090012941



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