IN THE CASE OF:	

		BOARD DATE:	9 December 2010

		DOCKET NUMBER:  AR20100014820


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, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to state he was medically retired due to illness incurred during active military service.

2.  The applicant states he was treated for Hodgkin's disease during active duty, spending more than 6 months at Walter Reed Army Medical Center.  He states he is experiencing post-traumatic stress following chemotherapy and feels he should have been medically retired instead of being separated at his expiration of term of service.  He states that a great injustice has been done to him as a result of the Army's negligent act.

3.  The applicant provided no additional documentary evidence.

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 record shows he enlisted in the Regular Army on 3 November 1976.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 75B (Personnel Administrative Specialist).  The highest rank/grade he attained while serving on active duty was specialist five/E-5.

3.  The applicant was discharged on 21 July 1983.  Item 24 (Character of Service) of his DD Form 214 shows he received an honorable discharge; item 25 (Separation Authority) shows he was discharged under the provisions of Army Regulation 635-200 (Enlisted Separations), chapter 4; and item 28 (Narrative Reason for Separation) shows he was discharged at his expiration of term of service.

4.  There is no indication in the available records of any injury or illness that would have warranted his entry into the Physical Disability Evaluation System (PDES).

5.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.

6.  Army Regulation 635-40, paragraph 2-2b(1) then in effect, provided that when a member was being separated by reasons other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she was scheduled for separation or retirement created a presumption that he or she was fit.  This presumption could be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

7.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  .  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been retired for medical illness incurred during active military service.

2.  The applicant's medical records were not available for review.  There is no evidence he was diagnosed with Hodgkin's disease or any other illness while on active duty.  It is possible he has developed post-traumatic stress disorder or his condition may have worsened since he was separated; however, the Army's PDES is dependent on the existence and severity of a condition at the time of separation.

3.  There is no evidence in the available records and he did not provide any evidence that shows he was diagnosed with a medical condition that would have warranted his entry into the PDES.  Therefore, he never underwent an MEB.  Without an MEB, there would have been no basis for referring him to a PEB.  Without a PEB, he could not have been issued a medical discharge or separated/retired for physical disability.

4.  He was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Therefore, there is no basis to grant the requested relief.

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 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)                                         AR20100009160



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100014820



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1