BOARD DATE:	  4 January 2011

		DOCKET NUMBER:  AR20100016741 


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 records to show he was medically discharged instead of honorably discharged.  He also indicated he desires a personal hearing.

2.  The applicant states he was told during his outprocessing that he could not be medically evaluated because there was something that needed to be worked out first.  He voiced concern through the Office of the Inspector General at Fort Knox, KY, at which time he was advised to reenlist in order to get a medical examination.  He never received a separation physical.  He adds that at some point, he was advised by a military lawyer during a criminal trial that he, the military lawyer, would look into the issue of not having been given a separation physical.  But nothing materialized out of that.  He was also told by a physician assistant that his outprocessing papers would not be signed until it was determined if he is entitled to compensation or received a rating.  He was also told his medical records would be given to his military spouse, who worked at the Fort Knox pharmacy.  He was ultimately separated without a separation physical. This injustice destroyed his marriage and his normal life with his children.  He had had numerous medical problems during his military service caused by performing his duties as a military police.  He had many injuries caused by traffic accidents while performing his duties.  These were ignored by the medical outprocessing department.  He also had an operation on his tooth at the time.  The military dentist cut his saliva gland which caused him many saliva problems since.  Additionally, his osteoarthritis existed during his military service as evidenced by his medical records.  He believes all his injustices were because by one incident of nonjudicial punishment (NJP).  He concludes that the military had a duty and responsibility to give him an outprocessing physical.  He wants the wrong to be made right. 

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Reenlistment/Extension Worksheet
* Request for DD Form 215 (Correction to DD Form 214)

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 (RA) on 25 November 1974 and held military occupational specialty (MOS) 95B (Military Police).  He also executed two 3-year reenlistments, on 11 November 1977 and on 8 October 1980, and a 3-month extension on 21 March 1983. 

3.  He served in Korea from 2 June 1978 to 30 May 1979 and 23 March 1982 to 22 February 1984 and attained the rank/grade of staff sergeant (SSG)/E-6.

4.  On 6 December 1978, in Korea, he received a letter of reprimand for assault/aggravated assault. 

5.  His records show he accepted NJP under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

* On 4 January 1979, in Korea, for over-purchasing his authorized monthly limitation
* On 18 February 1981, at Fort Picket, VA, for wrongfully striking another Soldier

6.  On 25 December 1983, in Korea, he was again reprimanded for failing to maintain insurance on a privately owned vehicle.

7.  On 6 August 1984, at Fort Knox, KY, he accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully asking two Soldiers for sexual favors and telling them he would destroy a record of their apprehension for prostitution and for wrongfully procuring three Soldiers to engage in acts of prostitution with persons to be directed by him.  His punishment included a reduction to sergeant/E-5, a suspended forfeiture of pay, and suspended restriction and extra duties. 

8.  On 10 August 1984, after a loss of qualification in his MOS caused by his disciplinary problems and a behavior inconsistent with the high standards of law enforcement personnel, his immediate commander directed his reclassification into another MOS. 

9.  On 21 November 1984, by disposition form, he was notified to undergo a voluntary medical examination for separation by a specific suspense date.  The form further informed him that it is the Army policy to encourage all service members to undergo examination for separation or retirement; however, the option belonged to the member and must be indicated in a written, signed statement.  There is no indication in his records if he elected to undergo or decline a separation examination.

10.  He was honorably discharged on 7 December 1984 by reason of expiration of his term of service (ETS).  The DD Form 214 he was issued shows he completed 9 years, 11 months, and 13 days of creditable active service.  

11.  There is no indication in his available medical records that he suffered an illness/injury or any medical condition or was issued a physical profile that rendered him unable to perform his duties or warranted his entry into the Physical Disability Evaluation System (PDES).

12.  He continued his service by enlisting in the U.S. Army Reserve for a period of 1 year on 8 December 1984.  

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), establishes the Army PDES 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 office, grade, rank, or rating.  It provides for medical evaluation boards (MEB), which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB).

14.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should have been medically discharged.  He also requests a personal hearing.

2.  With respect to the personal hearing, his request was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by him is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

3.  With respect to the medical discharge, there is no evidence in his records and he did not provide any substantiating evidence that he suffered from any illness, injury, or a medical condition that warranted his entry into the PDES.   Therefore, he was not considered by an MEB.  Without an MEB, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or separated for physical disability.

4.  Even if he suffered any medical condition, 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform his/her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

5.  He was honorably discharged on 7 December 1984 by reason of ETS.  He subsequently was fit enough to enlist in the USAR.  The authority and reason for the applicant's discharge are correct and are in accordance with applicable regulation.  Therefore, he is not entitled to correction of his records to show that he was "medically discharged." 

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)                                         AR20100016741



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ABCMR Record of Proceedings (cont)                                         AR20100016741



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