IN THE CASE OF:	  

		BOARD DATE:	  8 February 2011

		DOCKET NUMBER:  AR20100016808 


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 honorable discharge be changed to a medical discharge.

2.  The applicant states:

* The Government discharged him honorably for its own convenience
* He was unfit for duty and he couldn't perform his duty, grade, rank, and office
* He was honorably discharged with an adjustment disorder without any compensation or retirement
* His disabling conditions included bronchitis, arthritis, hypertension, and an adjustment disorder
* There is clear evidence in his Army medical records he had chronic bronchitis
* He has arthritis in his back and hips due to a parachute jump which occurred two months prior to his separation
* His military medical records fail to show his vital signs were ever taken and due to this negligence, hypertension was not recorded
* He was diagnosed with chronic hypertension shortly after his discharge
* He believes if he had been given the proper mental examination his disability (adjustment disorder) would have been documented
* He was not given a Military Medical Retention Board, Medical Evaluation Board, Physical Evaluation Board, physical separation examination, or separation counseling
     
3.  The applicant provides:

* Numerous self-authored letters
* Service medical records
* Bureau of Prisons medical documents
* Department of Veterans Affairs (DVA) medical records

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 enlisted in the Regular Army on 4 February 1977 for a period of 4 years.  He trained as a personnel records specialist.

3.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under honorable conditions (a general discharge) on 26 October 1979 under the provisions of Army Regulation 635-200, paragraph 5-31, under the Expeditious Discharge Program for failure to maintain acceptable standards for retention.  He had served 2 years, 8 months, and 15 days of creditable active service.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Inactive Ready Reserve) to complete his remaining service obligation.

4.  His DA Form 2 (Personnel Qualification Record, Part I), prepared on 27 April 1979, shows his physical profile was 111111.

5.  On 3 February 1983, he was honorably discharged from the USAR Ready Reserve. 



6.  In support of his claim, he provided a service medical record, dated 22 August 1978, which shows he was treated for bronchitis and he provided a service medical record, dated 8 August 1979, which shows he injured his back on a parachute jump in July 1979.  He also provided a list of his current medications and medical documentation from the Bureau of Prisons and DVA.   

7.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The pertinent paragraph in chapter 5 provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential may be discharged.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  Issuance of an honorable discharge certificate was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade, and general aptitude.  A general discharge is a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.

8.  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.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that the mere presence of an 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 Soldier reasonably may be expected to perform because of his or her office, grade, or rank.  It states 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.  When a Soldier is being processed for separation 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 indicates that a Soldier is fit.


10.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):  
P-physical capacity or stamina, U-upper extremities, L-lower extremities, 
H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant requests his honorable discharge be changed to a medical discharge, he was issued a general discharge when he was separated from active duty.  He did receive an honorable discharge when he was discharged from the USAR in 1983.

2.  Although he now contends his discharge should be changed to a medical discharge due to disabling conditions he incurred prior to his separation in 1979, his DA Form 2-1 prepared on 27 April 1979 shows he was found to be medically fit for any military assignment.  

3.  No evidence shows he was ever medically unfit to perform his duties.  

4.  In the absence of evidence to the contrary, it must be presumed his separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, 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)                                         AR20100016808



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ABCMR Record of Proceedings (cont)                                         AR20100016808



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