IN THE CASE OF:	  

		BOARD DATE:	  21 October 2010

		DOCKET NUMBER:  AR20100010533 


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 that his records be changed to show he was medically retired.

2.  The applicant states that at the time of his separation he was not given appropriate counsel regarding his options, the exact nature of his medical condition, and a prognosis.

3.  The applicant provides two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) and an affidavit.

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 military records show he enlisted in the Regular Army on 5 October 1965.  He was awarded the military occupational specialty of light weapons infantryman.  He reenlisted for a period of 4 years on 22 November 1966.  The highest rank/grade he held was specialist six/E-6.

3.  A DA Form 3349 (Medical Condition - Physical Profile Record), dated 21 August 1969, shows he had a herniated nucleus pulposis lumbar spine "slipped disc."  The "3(T)" entry in section B (Physical Profile), line 5, under column "L" of this form indicates the condition was temporary in nature.  All other entries on this form are "1's" indicating there were no medical problems precluding him from performing his duties.

4.  An undated affidavit completed at Fort George G. Meade, Maryland, states the applicant personally appeared before the administering officer and was advised of his "rights and advantages of remaining in an active duty status in the Army beyond the scheduled date of his expiration of term of service for the purpose of continuing medical care or hospitalization and, if eligible, subsequent separation or retirement for physical disability under the provisions of chapter 61, Title 10, U.S. Code, and after being duly sworn, deposes and says:  I, [applicant], have been fully advised by the undersigned officer of the rights and advantages that may accrue to me by voluntarily remaining on active duty in the Army beyond the scheduled date of expiration of my term of service for the purpose of continuing medical care or hospitalization and, if eligible, subsequent separation or retirement for physical disability under the provisions of chapter 61, Title 10, U.S. Code, and have been further fully advised that if I elect to be discharged or released from active duty as scheduled I will not, after such discharge or release from active duty, be eligible for separation or retirement for physical disability.  Wherefore, in consideration of the above, I (do) (do not) desire retention on active duty in the Army beyond the scheduled dated of expiration of my term of service."  While there is no date on the document, it does have his signature affixed to it, as well as that of the administering officer.  The affidavit also does not indicate whether he desired retention on active duty or not.

5.  A DA Form 3082-R (Statement of Medical Condition), dated 7 December 1970, signed by the applicant indicates he had been admitted to the hospital due to a slipped disk and that he was recuperating.

6.  A DA Form 1811 (Physical and Mental Status on Release from Active Service), dated 7 December 1970, shows he was physically qualified for separation or for reenlistment without reexamination provided he reenlisted within 3 months and stated that he had not acquired new diseases or injuries during the interval period when not a member of the military service.  The physical profile block for that date contained all numerical designators of "1" and code "A."

7.  Headquarters, Fort George G. Meade, Special Orders Number 248 Extract, dated 7 December 1970, show he was relieved from active duty not by reason of physical disability effective 8 December 1970.

8.  His DD Form 214 for the period ending 8 December 1970 shows he was honorably released from active duty on 8 December 1970 for expiration term of service.  This form shows he completed a total of 5 years, 2 months, and 4 days of active service.

9.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 7 (Physical Profiling), provides that the physical profile serial system is based primarily upon the function of body systems and their relation to military duties.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):  P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  A physical profile designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System according to the provisions of Title 10, U.S. Code, chapter 61, and Department of Defense Directive 1332.18.  It 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.  It states 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

11.  Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEB).  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

12.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that at the time of his separation he was not given appropriate counsel regarding his options, the exact nature of his medical condition, and a prognosis.  However, based on the applicant's signature on the affidavit, it must be presumed he was properly counseled regarding his options regarding an election to remain on active duty for the purpose of continuing medical care or release from active duty and ineligibility for separation or retirement for physical disability.

2.  It is evident the applicant incurred a "slipped disk" while in the military.  However, a disability rating is not based solely upon the existence of a physical defect, but rather upon the extent to which the defect hampers the individual's performance of duty.

3.  He indicated on the DA Form 3082-R that he was recuperating from this medical condition.  His military records show he was given medical and mental health evaluations.  His DA Form 1811 shows a code "A" indicating he was considered to possess a high level of medical fitness.  This form further indicated he was qualified for separation or reenlistment.  As such, there is no evidence he had an unfitting diagnosis that would require an MEB.  Absent an MEB referral to a PEB for an unfitting determination/rating, there is no basis for a disability rating leading to a disability retirement.  Only conditions found unfitting by the PEB are authorized for compensation.  As such, the narrative reason for separation, "expiration term of service," shown on his DD Form 214 is correct as currently constituted.

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)                                         AR20100010533



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100010533



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1