IN THE CASE OF:	  

		BOARD DATE:	  21 December 2010

		DOCKET NUMBER:  AR20100018047 


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 a medical discharge with benefits and life insurance.  

2.  The applicant states he believes his head injuries were brought on by a drill sergeant at Fort Bragg, NC.  The company was in formation when the drill sergeant took the applicant's rifle and hit him with the rifle butt.  The drill sergeant told him to never give up his rifle.  This same drill sergeant would borrow money from others and he, the applicant, turned him in.  He adds that he was sent to see a doctor who told him he would be alright.  When basic combat training was over, he was sent back to his U.S. Army Reserve (USAR) unit.  However, in February 1969, he started having medical problems and in November 1970, he had a head operation.

3.  The applicant provides:

* A photograph
* His Honorable Discharge Certificate
* A class photograph
* A hospital appointment card
* Unexcused absence from training memorandum
* His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* A Standard Form (SF) 88 (Report of Medical Examination)
* 
An SF 89 (Report of Medical History)
* An SF 513 (Clinical Record - Consultation Sheet)
* An SF 601 (Immunization Record)

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 USAR for a period of 6 years on 20 March 1968.  He subsequently entered active duty for training (ACDUTRA) on 23 August 1968, he completed basic combat and advanced individual training, and he was awarded military occupational specialty (MOS) 94A (Cook Helper). 

3.  He was honorably released from ACDUTRA on 23 December 1968 to the control of his USAR unit.  He was assigned to Company D, 3rd Battalion,
354th Regiment, 2nd Brigade, 89th Division, Durango, CO.

4.  On 10 August 1970, the applicant was medically evaluated and on 13 August 1970, after undergoing a series of tests and exams, he was diagnosed as having a seizure disorder, hypertension, and sleep disorder. 

5.  On 18 November 1970, by letter to the applicant's immediate commander, a civilian neurologist indicated that the applicant had been in his care for a brain abscess.  He underwent a left craniotomy for an abscess on 24 September 1970 and he had been improving progressively.  Although he had had no motor or sensory deficits following his surgery, he had evidence of a seizure disorder for which he was being treated.  Because of the potential danger of a seizure disorder combined with his previous brain injury, the neurologist did not believe the applicant was a good candidate for the military.

6.  On 4 December 1970, by memorandum, Headquarters, 2nd Brigade, 89th Division, notified the applicant that appointments had been arranged for a physical examination and consultation to evaluate his status for retention in the USAR.

7.  On 9 December 1970, he was evaluated by the neurologist for continued service in the USAR.  The consultation sheet stated he had developed a seizure, headache, bleeding, and difficulty with his speech in the summer of 1970.  He underwent a left craniotomy for an abscess and he had been improving.  However, the neurologist recommended his medical discharge from the USAR.

8.  On 25 January 1971, he underwent a medical examination to determine his potential for retention in the USAR.  The attending physician noted residuals of craniotomy with burn holes.  He also noted his need for further neurology in the future and determined he was not qualified for retention.

9.  On 21 February 1971, the applicant's immediate commander initiated a request to discharge him from the USAR for medical disqualification.

10.  On 5 April 1971, subsequent to a request for a determination of medical qualification for retention in the USAR, the Command Surgeon determined the applicant was medically disqualified for USAR service due to a defect in the skull post-operation for brain abscess.  He recommended his discharge.

11.  On 3 May 1971, the applicant was honorably discharged from the USAR under the provisions of Army Regulation 135-178 (Enlisted Administrative Separation), paragraph 3-4, by reason of being medically disqualified. 

12.  Army Regulation 135-178 in effect at the time, established the policies, standard, and procedures governing the administrative separation of enlisted Soldiers from the Reserve Components (RC).  Chapter 3 states discharge will be accomplished when it has been determined that an enlisted member is no longer qualified for retention by reason of medical unfitness unless the member requests and is granted a waiver or is eligible for transfer to the Retired Reserve. RC members who do not meet the medical fitness standards for retention due to a condition incurred while on active duty, any type of active duty training, or inactive duty training will be processed as specified in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

13.  Army Regulation 635-40 establishes the Army physical disability evaluation system (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). 

14.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD).

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence in the applicant's records and he did not provide any evidence that his drill sergeant hit him with the rifle butt that ultimately led to his injury or that he was treated for such action.  His records show he successfully completed training and he was honorably released from active duty to the control of his USAR unit.  At that time, he had not yet been found unable to meet retention requirements.  

2.  While on ACDUTRA, he did not suffer 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 physical evaluation board (PEB).  Without a PEB, he could not have been issued a medical discharge or separated for physical disability.

3.  The evidence of record shows he continued to serve in his USAR capacity.  At some point, he experienced symptoms of a seizure but there is no evidence he experienced this medical condition while performing active duty, active duty for training, or while participating in unit drill(s).  He subsequently underwent a physical examination for the purpose of determining his qualification for retention in the USAR.  The results of this retention physical examination were evaluated by the Command Surgeon who determined the applicant did not meet retention standards of Army Regulation 40-501.  

4.  Accordingly, he was recommended for discharge as a result of being medically unfit for retention.  There is no evidence and the applicant provided none to show that he requested a waiver under the provisions of Army Regulation 135-178 for retention in the USAR after he was determined to be medically unfit.
5.  He was honorably discharged on 3 May 1971 for being medically unfit for retention standards of Army Regulation 40-501, chapter 3.  The authority and reason for the applicant's separation 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" as opposed to being separated as "medically unfit for retention standards of Army Regulation 40-501, chapter 3."  

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)                                         AR20100018047



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ABCMR Record of Proceedings (cont)                                         AR20100018047



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