IN THE CASE OF:	  

		BOARD DATE:	  13 April 2010

		DOCKET NUMBER:  AR20090016572 


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 medical discharge.

2.  The applicant states, in effect, that in April 2003 he received a service-connected disability rating on his Department of Veterans Affairs (VA) claim.

3.  In support of his application, the applicant provides a completed Standard Form 180 (Request Pertaining to Military Records).

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 enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 11 June 1976.  He was discharged from the USAR DEP and 
he enlisted in the Regular Army in pay grade E-1 on 8 July 1976, for 4 years.  He completed training and was awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  He was advanced to pay grade E-3 on 1 August 1977.

3.  On 1 December 1977, the applicant requested an expeditious discharge under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  His request was based on the findings and recommendations of a Medical Evaluation Board (MEB) that he was unfit for retention in the military service by reason of physical disability which had been found to have existed prior to service (EPTS).  He elected not to have his case considered by the adjudicative system that processed disability separations.  He also acknowledged that his entitlement to VA benefits would be determined by the VA.  He acknowledged that he would be separated by reason of physical disability EPTS and would receive a discharge commensurate with the character of his service.  On the same date, his request was forwarded to the commander for necessary action.

4.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, his records contained a copy of his DD Form 214 which shows that he was honorably discharged in pay grade E-3 on 20 January 1978, under the provisions of Army Regulation 635-40, chapter 5, by reason of disabilities EPTS.  He was credited with 1 year, 6 months, and 13 days of total active service this period.

5.  Army Regulation 635-40, chapter 5, in effect at the time, provided for the separation of enlisted personnel who were not qualified for retention on active duty by reason of physical disability which was neither incurred nor aggravated during any period in which the member was entitled to basic pay.  Upon receipt of medical board proceedings recommending separation, the member would be advised that he could not be separated under chapter 5 if he did not agree.  If he did not agree his case would be referred to a physical evaluation board (PEB) for a determination of whether he was fit or unfit because of physical disability.  If the member agreed with the medical board that his physical disability was EPTS and was not aggravated thereby, he could apply for expeditious discharge under the provisions of chapter 5.  

6.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA has neither the authority nor the responsibility for 

determining physical fitness for the military service.  It awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention has been noted.  However, the evidence of record shows an MEB found the applicant unfit for retention by reason of physical disability which had been found to have been EPTS.  The applicant concurred and requested an expeditious discharge in accordance with Army Regulation 635-40, chapter 5.  He elected not to have his case referred to a PEB.  His request was approved and he was honorably discharged on 20 January 1978.

2.  Members may not be separated under the provisions of Army Regulation 635-40, chapter 5, if they did not agree; they could have their case referred to a PEB.  If they did agree with the MEB, they could request to be discharged.  As such, the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Without evidence to the contrary, it appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant concurred with the findings and recommendations of an MEB and requested immediate discharge from the Army.  There is no evidence that he wanted his case referred to a PEB.  He also acknowledged that his entitlement to VA benefits would be determined by the VA.

3.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090016572



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ABCMR Record of Proceedings (cont)                                         AR20090016572



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