BOARD DATE:	  27 October 2009

		DOCKET NUMBER:  AR20090013109 


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, a change to the reason for his discharge from early separation of overseas returnee to medical reasons.

2.  The applicant states, in effect, that he was injured on active duty and should have been discharged for medical reasons.

3.  The applicant provides no additional documentation 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 record shows he was inducted into the Army of the United States and entered active duty on 28 June 1968.  His record shows that he was trained in and awarded military occupational specialty 16D (Launcher Crewman).  Upon completion of basic and advanced individual training he was reassigned to Okinawa where he performed the duties of a Hawk Missile Crewman.  He returned to the continental United States on 20 June 1970.

3.  On 21 June 1970, the applicant was separated from active duty and transferred to the U.S. Army Reserve after having served 1 year, 11 months, and 24 days of service.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows in item 11c (Reason and Authority) that he was honorably separated by reason of "early separation of overseas returnee."

4.  The applicant's records contain a Standard Form 88 (Report of Medical Examination), dated 5 June 1970, which shows that a competent medical authority identified no defects or diagnosis and determined that the applicant was qualified for separation.

5.  The applicant's records contain a DA Form 3082-R (Statement of Medical Condition), dated 21 June 1970, and signed by the applicant stating the he underwent a medical examination more than 3 working days prior to his departure from his place of separation and that since his last separation examination there was no change to his medical condition.

6.  The applicant's record is void of any document and the applicant did not provide any documents to show that he was treated for or diagnosed with a condition or physical disability which would have made him unfit for service prior to his separation.

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.

8.  Chapter 3 of Army Regulation 635-40 contains guidance on standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

9.  Paragraph 3-2 of Army Regulation 635-40 contains guidance on fitness presumptions.  It states, in pertinent part, that disability compensation is not an entitlement acquired by reason of 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.  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.  A presumption of fitness may be overcome if the evidence establishes that the Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank, or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the reason for his discharge should be changed to medical because he was injured on active duty was carefully considered.  However, although the sincerity of the applicant's contention is not in question, there is no available evidence to support his contention.

2.  Competent medical authority examined the applicant prior to his separation and determined he was qualified for separation.  The applicant acknowledged that an examination was completed and that there had been no change to his medical condition since the completion of that examination.  As a result, lacking evidence to the contrary, there is insufficient evidence to grant the requested relief.

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.



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)                                         AR20090013109



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1