BOARD DATE:	  7 December 2010

		DOCKET NUMBER:  AR20100016665 


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 discharge be changed from a hardship discharge to retirement by reason of physical disability.

2.  The applicant states that he was medically unqualified to serve while on active duty and he should have been medically retired instead of being discharged due to hardship.

3.  The applicant provides a copy of his Report of Medical History, dated 7 May 1974, and a copy of an endorsement from the Enlistment Eligibility Activity (EEA), dated 24 April 1975. 

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 initially enlisted in the Regular Army (RA) on 6 March 1961 and served as a supply clerk until he was honorably released from active duty (REFRAD) as an overseas returnee on 24 February 1964.

3.  On 26 March 1965, he again enlisted in the RA and served until he was honorably discharged in the rank of sergeant on 8 April 1968 due to the expiration term of service (ETS).

4.  On 29 June 1970, he again enlisted in the RA for a period of 3 years and served as a light weapons infantryman.  He was promoted to the pay grade of
E-6 on 28 June 1971.  He was honorably discharged on 6 July 1972 for the purpose of immediate reenlistment.  He reenlisted on 7 July 1972 for a period of 6 years and a variable reenlistment bonus of $10,000. 

5.  The applicant was transferred to Germany on 15 October 1973 and he was assigned to an infantry company.  On 26 April 1974, he submitted a request for a hardship discharge based on financial hardship and dependency.  He was married to a Korean wife and he was sponsoring 13 members of her family who were in the United States and neither his wife nor her family spoke sufficient English to help with family support.  

6.  His request for a hardship discharge was approved and on 20 May 1974 he was honorably discharged under the provisions of Army Regulation 635-200, paragraph 6-13B, due to hardship.  He had served 9 years, 10 months, and 1 day of total active service.

7.  The applicant’s medical records are not present in the available records as they were loaned to the Department of Veterans Affairs (VA) in San Francisco, California in 1975.  However, a review of his evaluation reports shows that he received primarily “Outstanding” and “Excellent” evaluations as a noncommissioned officer (NCO).  There is no evidence in his records to reflect that he could not or was not performing the duties of his military occupational specialty (MOS).

8.  The report of medical history provided by the applicant with his application indicates in his own handwriting that he was in good health.

9.  On 24 April 1975, approximately a year after his discharge, the applicant applied for a waiver to again enlist in the Regular Army and the EEA denied his request contending that he had two disqualifications, one being a medical defect and the other was that he had been discharged for hardship/dependency.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 6 of the regulation in effect at the time provided, in pertinent part, for the separation of personnel because of genuine dependency or hardship.  An application for such separation will be approved when a service member can substantiate that his or her situation or immediate family’s situation has been aggravated to an excessive degree since enlistment, that the conditions is not temporary and that discharge will improve the situation.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states, in pertinent part, that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  This regulation also provides, in pertinent part, that when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit.

12.  Title 38, United States Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a VA rating does not establish error or injustice in whether or not an Army rating is given, or in an Army rating that is given.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further 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.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different positions.  Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.





DISCUSSION AND CONCLUSIONS:

1.  The applicant has not provided any evidence and the available record does not contain sufficient evidence to show that at any point during the separation process he was determined to be unfit for retention or discharge.  Therefore, it must be presumed in the absence of evidence to the contrary that the applicant’s administrative discharge was accomplished in accordance with the applicable regulations with no violations of his rights.    

2.  It must also be presumed, in the absence of evidence to the contrary, that at the time the applicant underwent his separation physical that medical personnel properly determined his medical condition, if he had any, did not warrant consideration under the Physical Disability Evaluation System and/or referral to a medical and/or physical evaluation board.  Accordingly, it appears that he was properly discharged under administrative procedures in accordance with the applicable regulations.    

3.  Therefore, in the absence of evidence to show that at the time of his discharge he was unfit for separation or that he could not perform the duties of his rank and MOS, there appears to be no basis to grant his request for medical retirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x_____  ___x____  ___x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.




2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.





      _______ _   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)                                         AR20100016665



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100016665



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1