IN THE CASE OF:	

		BOARD DATE:	  5 January 2010

		DOCKET NUMBER:  AR20090013706 


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 he be retired by reason of physical disability. 

2.  The applicant states, in effect, that he was turned down by the draft (induction), then allowed to enlist in the Regular Army and sent home on a medical discharge 17 months and 9 days later.  He goes on to state that being allowed to enlist was life changing for him and his family and he feels that he should be compensated for his time and everything the Army took from him.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 

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 was born on 29 October 1949 and enlisted in the Regular Army in Columbus, Ohio on 18 December 1970 for a period of 3 years and training in the wire maintenance career management field and airborne training.  He completed his basic training at Fort Knox, Kentucky and his advanced individual training (AIT) at Fort Leonard Wood, Missouri and Fort Gordon, Georgia.  While attending AIT as a lineman, he requested that his enlistment commitment for airborne training be waived because he was afraid of heights.  He was transferred to a signal company at Fort Bragg, North Carolina on 28 June 1971. 

3.  The applicant’s medical records and the facts and circumstances surrounding his discharge are not present in the available records because they were loaned to the Department of Veterans Affairs (VA) in Springfield, Ohio in August 1990.  However, his records do show that the applicant was on orders to be transferred to Europe by way of the Overseas Replacement Detachment at Fort Jackson, South Carolina and on 3 May 1972, he submitted a request for an Expeditious Discharge to the Commanding General of Fort Jackson.  He indicated that based on the findings and recommendations of a medical board, he had been found to be unfit for retention in the military service by reason of physical disability which was found to have existed prior to his enlistment and which was neither incident to or aggravated by his military service.  He also acknowledged that he understood his rights to be processed for physical disability and elected not to exercise his rights.  He stated that he understood that entitlement to VA benefits would be determined by the VA and that he would be separated by reason of physical disability that existed prior to service (EPTS).  His request was witnessed by the Physical Evaluation Board Liaison Officer (PEBLO).  

4.  On 9 May 1972, he was honorably discharged under the provisions of Army Regulation 635-200, chapter 5, due to not meeting medical fitness standards at the time of enlistment.  He had served 1 year, 4 months and 20 days of active service.  He was assigned to the Overseas Replacement Detachment at the time of his discharge.

5.  Army Regulation 635-200, in effect at the time, served as the authority for the separation of enlisted personnel.  It provided, in effect, that commanders were authorized to order discharge of individuals who were not medically qualified 

under procurement medical fitness standards when accepted for induction or initial enlistment.  Eligibility for discharge was governed by a medical board finding that the individual has a medical condition which would have permanently disqualified them for entry in the military service had it been detected at the time and did not qualify them for retention in the military service under chapter 3, Army Regulation 40-501. 

DISCUSSION AND CONCLUSIONS:

1.  While the applicant has not indicated and the available records do not indicate what the applicant’s disqualification was at the time of separation, it must be presumed in the absence of evidence to the contrary that the applicant’s administrative discharge was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant’s rights. The available evidence indicates that he had an opportunity to be processed for physical disability and he waived that right in favor of separating expeditiously.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances and the applicant has failed to show otherwise.

3.  Therefore, in the absence of evidence to show that his medical condition was incurred during or aggravated by his military service, there appears to be no reason to believe that he was not properly discharged.  It is also noted that the applicant elected not to be processed for a physical disability separation at the time.

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)                                         AR20090013706



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ABCMR Record of Proceedings (cont)                                         AR20090013706



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