IN THE CASE OF:	  

		BOARD DATE:	    8 June 2010

		DOCKET NUMBER:  AR20090019700 


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 amendment of item 25 (Separation Authority) and item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states that item 28 should read, "physical evaluation board (PEB), aggravated during service."  He is currently not a disabled veteran and was not when he entered the service.  He had slight tremors, but the military accepted him anyway.  After Afghanistan, he got the tremors really badly and thereby aggravated the current condition that he has.  Item 28 should read something other than disability as his condition is not disabling.  However, it should be service connected because of aggravation in service.  There is continuity and symptomology; however, still not totally/permanently disabling.  It is difficult for him to find a job.

3.  The applicant provides a copy of his DD Form 214.

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.  His military records show he enlisted in the Illinois Army National Guard (ILARNG) on 19 September 1996.  He entered on active duty for training on 22 May 1997 and was released from training on 11 September 1997.  He was honorably released from the ILARNG on 19 November 1998 for the purpose of enlisting in the Regular Army.

3.  He enlisted in Regular Army in pay grade E-3 on 20 November 1998 and reenlisted on 20 November 2003 for 3 years.

4.  All the documents containing the facts and circumstances surrounding his discharge are not present in the available records.  However, his records contain a copy of his DD Form 214 which shows he was honorably discharged in pay grade E-4 on 15 November 2005 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(4), by reason of disability, existed prior to service (EPTS), PEB.  He was credited with 6 years, 11 months, and 26 days of net active service.

5.  Item 25 of his DD Form 214 shows the entry "Army Regulation 635-40, paragraph 4-24b(4)" and item 28 shows the entry "disability, EPTS, PEB."

6.  Army Regulation 635-40, then in effect, established the Army Physical Disability Evaluation System and set forth policies, responsibilities, and procedures that applied in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  Chapter 4 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.  That chapter also provided for medical evaluation boards, which were convened to document a Soldier's medical status and duty limitations insofar as duty was affected by the Soldier's status.  A decision was 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.  Soldiers were referred into the Army Physical Disability Evaluation System when they no longer met medical retention standards in accordance with Army Regulation 40-501, chapter 3.  A PEB could decide that a Soldier's physical defect EPTS.  Each case was first considered by an informal PEB.  A Soldier was entitled to a formal hearing if requested after informal consideration by a PEB.  Paragraph 4-24b(4) provided for final disposition of cases based on final decision by the U.S. Army Physical Disability Agency and the separation of individuals for physical disability without severance pay.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed he was found unfit for retention by reason of physical disability which was neither incurred nor aggravated during his period of service and found to have been EPTS by a PEB. It also appears he concurred with the findings and recommendation of the PEB as he was honorably discharged on 15 November 2005 in accordance with Army Regulation 635-40, paragraph 4-24b(4).  Items 25 and 28 of his DD Form 214 are commensurate with and correspond to the reason for his discharge.

2.  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)                                         AR20090019700



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ABCMR Record of Proceedings (cont)                                         AR20090019700



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