IN THE CASE OF:	  

		BOARD DATE:	     20 May 2010

		DOCKET NUMBER:  AR20090018466 


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 correction of his records to show he was medically discharged.

2.  The applicant states he could not complete his duties as an infantryman due to injuries.  He further states he was qualified for a medical discharge under the criteria found in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, paragraphs 3-13b, 3-14a, and 3-14b.

3.  The applicant provides the following documents in support of his request:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 3349 (Medical Condition - Physical Profile Record), dated 
11 January 1980
* Medical Diagnosis, dated 29 May 1979
* Extract of Army Regulation 40-501, chapter 3, paragraphs 3-13b, 3-14a, and 3-14b, dated 14 December 2007

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 enlisted in the Regular Army on 3 May 1977.  He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman) and specialist four (SP4)/E-4 is the highest rank/grade he attained while serving on active duty.

3.  A medical diagnosis by the U.S. Army hospital, Fort Stewart, GA, provided by the applicant, dated 29 May 1979, indicates he underwent excision of the medial sesamoid without difficulty.  His treatment consisted of a short leg walking cast, placement on convalescence leave, and discharged from the hospital on
14 March 1979 with a temporary L3, code C and D profile for one month to be followed in Orthopedic Clinic in one month.

4.  The applicant's record contains a DA Form 3339 which assigned a permanent "3" profile in the L (lower extremities) portion of the Physical Profile and shows the following in the sections indicated:

	a.  Section A (Duty Status), items 1 and 2, individual was returned to his unit for duty and he was medically qualified for duty with permanent assignment limitations;

	b.  Section C (Assignment Restrictions, or Geographical, or Climatic Area Limitations), item 8, No crawling, stooping, running, jumping; marching or standing for long periods.  (Long periods defined as marching limited to 1 mile and standing limited to 1 hour);

	c.  Section C, item 9, states the above conditions are permanent; and

	d.  Section D (Medical Board Proceedings) contains the approval action of a medical board on 29 January 1980.

5.  On 2 May 1980, the applicant was honorably released from active duty (REFRAD) under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel, chapter 2, by reason of completion of required service.  He completed 3 years of active service.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.

6.  The records contain a Standard Form (SF) 507 (Clinical Record), dated
27 July 1980, which shows a Physical Review Board reviewed the applicant's permanent profile and found the applicant qualified for retention/active duty.

7.  On 26 November 1980 the applicant was ordered to report to the 307th General Hospital in New York no later than 9 February 1981 for the purpose of completing a quadrennial medical examination.

8.  On 26 August 1982, the applicant was honorably discharged from the USAR Ready Reserve.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), establishes the Army physical disability evaluation system 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 office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the medical evaluation board (MEB) determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB).

10.  Paragraph 3-1 of this regulation provides 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform his/her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have received a medical discharge was carefully considered but there is insufficient evidence to grant relief.

2.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

3.  The applicant's medical condition was reviewed on 9 February 1981, after his separation from active duty, and on 27 July 1981 he was found qualified for retention.  There is no evidence in the applicant’s records that his medical condition disqualified him from further service and/or warranted his entry into the Physical Disability Evaluation System separation processing through medical channels.  Absent any evidence he suffered from a medically disqualifying condition at the time of his REFRAD, there is an insufficient evidentiary basis to grant the requested relief. 

4.  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 did not submit evidence that would satisfy this requirement.  The applicant has not shown error, injustice, or inequity for the relief he requests.

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)                                         AR20090018466



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ABCMR Record of Proceedings (cont)                                         AR20090018466



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