IN THE CASE OF:	  

		BOARD DATE:	  11 May 2010

		DOCKET NUMBER:  AR20090018732 


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 that his record is in error because a medical physician recommended that he be discharged in 1968 but instead of being discharged, he was made a prisoner of war (POW).  He should have been given medical attention.  While he was being held prisoner, he received treatment that violated the Geneva Convention.  He was beaten and stripped of his clothing, he was made to sleep on solid concrete without any padding, and he was deprived of any food or water.  At the time, he was suffering from Post Traumatic Stress Disorder (PTSD).  After his discharge, he sought help from the Department of Veterans Affairs (DVA).

3.  The applicant provides a copy of his DVA appeal decision, dated 4 February 2009; and 2 medical statements, dated 13 June 2006 and 19 November 2007, from Kaiser Permanente in support of his request.

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 records show he enlisted in the Regular Army on 3 November 1965 and held military occupational specialty 11H (Infantry Indirect Fire Crewman). 

3.  His records also show he served in Vietnam from on or about 10 October 1967 to 20 January 1969.  

4.  His records reflect an extensive history of lost time due to being absent without leave (AWOL) or confinement as follows: 20 June – 4 September 1967; 
5 September – 6 October 1967; 31 December 1967 – 31 January 1968; 6 May – 16 June 1968; 28 June – 14 August 1968; 28 August - 12 September 1968; and 19 September – 19 November 1968.

5.  His records also show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  On 17 November 1966, for failing to go to his appointed place of duty at the prescribed time and failing to maintain his property.  His punishment consisted of a suspended reduction to private (PV2)/E-2, 14 days of restriction, and 6 days of extra duty.

   b.  On 27 September 1967, for being AWOL from on or about 30 June to
5 September 1967.  His punishment consisted of a reduction to PV2/E-2, 60 days of restriction, 45 days of extra duty, and a forfeiture of $50.00 pay for 2 months (all suspended except the reduction in rank).

6.  On 16 June 1968, in Vietnam, he pled guilty at a special court martial to one specification of being AWOL from on or about 6 May to 16 June 1968.  The court sentenced him to a reduction to private/E-1, a forfeiture of $90.00 pay, and 
6 months in confinement.  However, on 2 July 1968, the convening authority approved the sentence but suspended 3 months of his 6-month sentence to confinement at hard labor.



7.  On 19 September 1968, the convening authority ordered the unexecuted portion of the sentence to confinement at hard labor for 6 months executed.  However, on 14 November 1968, the sentence was suspended effective 
20 November 1968 and remitted effective 1 January 1969.

8.  On 6 January 1969, his immediate commander initiated separation action against him in accordance with Army Regulation 635-212 by reason of unsuitability. 

9.  On 20 January 1969, the separation authority approved the applicant's elimination from the Army by reason of unsuitability and directed that he be issued a General Discharge Certificate.  Accordingly, he was discharged on 
24 January 1969.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of Army Regulation 635-212 by reason of unsuitability with service characterized as under honorable conditions.  He had completed 2 years, 
4 months, and 28 days of creditable active service and he had 294 day of lost time.

10.  The applicant's medical records are not available for review with this case. 

11.  The available evidence does not show the applicant was issued a permanent physical profile that restricted his duties and/or assignments or warranted referral to the Physical Disability Evaluation System (PDES).  Additionally, there is no evidence that he underwent a medical evaluation board (MEBD) or physical evaluation board (PEB).

12.  There is no evidence that he was in a POW status.

13.  He submitted the following documents:

	a.  A DVA letter, dated 4 February 2009, approving his appeal to grant service connection for PTSD.

	b.  A medical statement, dated 13 June 2006, from Kaiser Permanente wherein a psychiatrist states that he evaluated the applicant and found signs and symptoms consistent with PTSD.

	c.  A medical statement, dated 19 November 2007, from Kaiser Permanente wherein the same psychiatrist states he evaluated the applicant and determined that there was no evidence of symptoms of an active or residual psychotic disorder. 

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army's PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of a physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It provides for MEBDs, 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 Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).  If the MEBD determines the Soldier does not meet retention standards, the board recommends referral of the Soldier to a PEB.  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 may reasonably be expected to perform because of his or her office, rank, grade or rating.

15.  Title 10, U.S. Code (USC), section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

16.  Title 38, USC, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a VA rating does not establish error or injustice by the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  Unlike the Army, the VA can evaluate a veteran throughout the Soldier's lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his records be corrected to show he was medically discharged. 

2.  The evidence of record shows that after a series of misconduct, which started in June 1967, that included two instances of NJP, a special-court martial, and an extensive history of being AWOL, his chain of command initiated separation action against him by reason of unsuitability.  He was ultimately discharged with an under honorable conditions character of service.

3.  The mere presence of impairment does not of itself justify a finding of unfitness because of physical disability.  It is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member may reasonably be expected to perform because of his or her office, rank, grade or rating.

4.  There is no evidence that the applicant was unable to perform his duties due to any medical condition.  The Army must find that a Soldier is physically unfit to reasonably perform his duties and assign an appropriate disability rating before the Soldier can be medically retired or separated.  There is no evidence in his records that he suffered an injury or an illness during his military service that resulted in a physical profile or warranted his entry into the PDES.  

5.  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.  He failed to submit evidence that would satisfy this requirement.  He has not shown error, injustice, or inequity for the relief he requests.  Therefore, he is not entitled to the relief requested.

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)                                         AR20090018732



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ABCMR Record of Proceedings (cont)                                         AR20090018732



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