IN THE CASE OF:
BOARD DATE: 21 October 2010
DOCKET NUMBER: AR20100011317
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, in effect, that his discharge with severance pay be corrected to show he was separated as a result of retirement due to a medical disability.
2. The applicant states that his discharge should be changed to a medical retirement "as required by law."
3. The applicant states he is providing "STR" and Department of Veterans Affairs (DVA) records; however, no supporting documents were provided.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 27 January 1998, completed training, and was awarded military occupational specialty 13B (Cannon Crewmember).
3. On 9 October 1999, the applicant sustained a parachute jump injury that resulted in a compression fracture of his L-1 vertebra which required surgical fusion of T-12 through L-2.
4. A 14 August 2000, a Medical Evaluation Board (MEB) found the applicant to have residuals of a back injury that were impacting his ability to serve. It was determined that he did not meet the retention criteria and it was recommended that his case be referred to a Physical Evaluation Board (PEB). No other conditions were referenced.
5. On 31 August 2000, the applicant concurred with the MEB findings and recommendation.
6. On 7 September 2000, a PEB found the applicant unfit for continued service due to the residuals of his back injury. It determined that his conditions met a
10 percent disability evaluation for back pain on motion. No other conditions were referenced.
7. On 14 September 2000, the applicant concurred with the PEB determination and waived his right to a formal board hearing.
8. The applicant was discharged with disability severance pay on 11 October 2000. He had completed 2 years, 8 months, and 15 days of creditable active duty service.
9. During the processing of this case, an advisory opinion was obtained from the United States Army Physical Disability Agency, Legal Advisor. It was recommended that the applicant's request be denied as he had not provided any evidence of an error on the rating or in the determinations by either the MEB or PEB. It also noted that the applicant had not provided any additional medical records and claimed no specific error.
10. A copy of the advisory opinion was sent to the applicant for his information and opportunity to rebut. No response has been received.
11. 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.
12. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, they must be unable to perform the duties of their office, grade, rank or rating as a result of that disability and the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.
13. Army Regulation 15185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR will decide cases based on the evidence of record. It is not an investigative body.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his discharge should be changed to a disability retirement as required by law.
2. The applicant does not specify what provision of law he believes "requires" him to receive a disability retirement in lieu of his current discharge with severance pay.
3. The applicant's record does not contain any evidence and he has not provided any evidence to show that either the MEB or PEB was in error. Therefore, he has not established a basis for changing his current reason for discharge.
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) AR20100011317
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ABCMR Record of Proceedings (cont) AR20100011317
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