IN THE CASE OF:	  

		BOARD DATE:  6 July 2010	  

		DOCKET NUMBER:  AR20090020651 


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 his honorable discharge be changed to a medical discharge.  

2.  The applicant states the following:

* The 92nd Aviation Company was stationed in An Khe, Vietnam
* He refueled trucks and aircrafts when the area was sprayed for 
      weeds
* The spray was Agent Orange
* The Department of Veterans Affairs (VA) operated on him in 2002 and removed his prostate
* He was left without control of his bodily fluids

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 inducted into the Army of the United States on 22 July 1965.  

3.  His DA Form 20 (Enlisted Qualification Record) shows he was assigned to Vietnam in December 1965 with the 92nd Aviation Company as a petroleum storage specialist.  He departed Vietnam in December 1966.  

4.  The applicant underwent a separation physical examination on 19 June 1967. He was given a physical profile of 111111.  

5.  Special Orders Number 200, dated 19 July 1967 show the applicant was released from active duty not by reason of physical disability on 21 July 1967.  He was transferred to U.S. Army Reserve (USAR) Control Group (Annual Training (AT)) to complete his Reserve obligation.  

6.  In a 13 March 1968 letter, the VA indicated the applicant’s medical conditions as flail left upper extremity and acute brain syndrome (no residual speech or motor deficit as a result of this condition).  The examining physician indicated the applicant was not qualified for retention in the USAR.  The applicant was given a physical profile of 341111.

7.  On 1 April 1968, the applicant was honorably discharged from the USAR Control Group (AT) under the provisions of Army Regulation 135-178, paragraph 21 by reason of being medically disqualified.

8.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  This regulation 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 or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  The objectives of this regulation are to:

   a.  Maintain an effective and fit military organization with maximum use of available manpower.

   b.  Provide benefits for eligible Soldiers whose military service is terminated because of a service-connected disability.

   c.  Provide prompt disability processing while ensuring that the rights and interests of the Government and the Soldier are protected.

9.  Army Regulation 635-40, paragraph 8-2 (Eligibility) states:

   a.  Soldiers of the Reserve Component eligible for processing under this paragraph are those who incur a disability from an injury determined to be the proximate result of performing—

   (1)  Annual Training (AT), active duty special work (ADSW), active duty for 
training (ADT) with or without pay, or temporary tour of active duty (TTAD) under a call or order that specifies a period of 30 days or less, to include full time training duty (FTTD) under 32 U.S. Code (USC) sections 502f, 503, 504, and 505.

   (2)  Inactive duty training (IDT) including IDT without pay under competent 
orders.  While enroute to or from IDT, a Soldier of the RC is not performing duty. Therefore, Reservists who incur injuries while in a travel status to IDT are not eligible for referral into the disability system.  However, in exceptional cases, where there is evidence that the Soldier may actually be performing duty while in a travel status, the case should be referred to the PEB for consideration of eligibility.

   (3)  ADT under 10 USC 10148(a).  (This is usually a 45-day tour required 
by law because of failure on the part of the Reserve Component Soldier to perform other required training duty.)
   
   b.  Disability from disease incurred while performing duty prior to 15 November 1986.  If the disabling condition is the result of a disease rather than an injury, the Soldier is ineligible for disability processing unless a medical authority has decided that the disease is the result of a service-connected injury incurred as described in “a” above.


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was exposed to Agent Orange is not supported by his record.

2.  The evidence of record shows that prior to the applicant's separation in July 1967 competent medical authority determined he was medically qualified for separation with a physical profile of 111111.  

3.  The 13 March 1968 letter from the VA indicates he had a flail left upper extremity and acute brain syndrome.  Based on the applicant’s medical conditions, it was determined he was not qualified for retention in the USAR.  As a result, he was discharged from the USAR (AT) in April 1968.  

4.  The applicant’s contention that the VA operated on him in 2002 is also acknowledged.  However, his service record does not contain evidence to support his claim.

5.  The evidence of record does not indicate the applicant’s medical conditions in 1968 were the proximate result of his military duty.  Therefore, he did not meet the eligibility requirements for physical disability processing.

6.  The applicant has not presented sufficient evidence which indicates he was medically unfit to perform his duties prior to separation in July 1967.  Therefore, there is no basis for granting his 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)                                         AR20090020651



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ABCMR Record of Proceedings (cont)                                         AR20090020651



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