IN THE CASE OF:	  

		BOARD DATE:	  14 September 2010

		DOCKET NUMBER:  AR20100011445 


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 military records be reviewed by the St Louis Medical Retirement Board (STL-MRB).

2.  The applicant states, in effect, he was told during his retirement physical his medical records and his physical would be forwarded to (STL-MRB) for medical disability determination.  

3.  The applicant provided a copy of his medical records, retirement physical, a written statement and his veteran's administration file number. 

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 personnel records show he was inducted into the Army of the United States on 15 April 1971.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 95B (Military Policeman).  Records show the highest rank/grade he attained during his military service was sergeant major SGM/E9. 

3.  On 13 March 1997, the applicant completed his retirement physical and the following items were highlighted:

* he lived with someone who had tuberculosis
* he had broken bones, i.e. fractured nose and a chipped bone in his right hand and foot 
* he wears spectacles or contacts due to near vision
* he has a recurring rash on both thighs
* he has pain and locking in both knees

4.  He states, in effect, he was advised by the Fort Myer, Virginia, Radar Clinic medical staff that his medical records and the results of his retirement physical would be forwarded to the STL-MRB for medical/disability determination.

5.  On 31 May 1997, the applicant was retired.  

6.  The applicant provides a statement that indicates, in effect: 

* he has experienced painstaking challenges with the Department of Veterans Affairs (VA)
* his request is based on injuries and ailments that came about as a result of military service
* his conditions include a skin disorder, broken bones, back pains, chronic neck pains, obstructive sleep apnea, stroke, knee injuries, headaches, and acid reflux.

7.  The applicant also provides reams of medical documentation for review.  Over 80 percent of them are post-retirement medical documents.  The records show that in the last 6 years prior to retirement the applicant was evaluated for a variety of minor illnesses, mostly cold symptoms, and a skin rash.  The only chronic medical condition he had was problems with his cholesterol.

8.  Army Regulation 635-40 establishes the Army physical disability evaluation system and 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.  

9.  Department of Defense Instruction 1332.38 states the “Presumption of Fitness” rule will be applied to a Soldier who enters the physical disability evaluation system and his request for voluntary retirement has been approved; when an officer has been approved for Selective Early Retirement; when an officer is within 12 months of mandatory retirement due to age or length of service; or when an enlisted member is within 12 months of his retention control point (RCP) or expiration of active obligated service (EAOS) but will be eligible for retirement at his RCP/EAOS.

10.  Title 38, U.S. Code, sections 1110 and 1131, permit the Department of Veterans Affairs (VA) to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  Furthermore

DISCUSSION AND CONCLUSIONS:

1.  The applicant states, in effect, he was told during his retirement physical his medical records and the results of his physical would be forwarded to STL-MRB for medical disability determination.

2.  A brief review of his active service treatment records show in the last 6 years prior to retirement the applicant was evaluated for a variety of minor illnesses, mostly cold symptoms and a skin rash.  He had only one chronic medical condition and that was a problem with his cholesterol. 

3.  Although the applicant contends his records should have been sent to the STL-MRB, the available evidence does not show he had a medical condition which rendered him medically unfit to perform his duties or justify medical disability processing or that the presumption of fitness rule should not apply.  Therefore, 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)                                         AR20100011445



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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