BOARD DATE:	  22 March 2011

		DOCKET NUMBER:  AR20100023456 


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, through his Member of Congress, correction of his records to show he was medically discharged. 

2.  The applicant states he feels the Army should have given him a medical discharge upon release from active duty in 1969.  He had been on a medical profile for 5 months and he remained on profile due to a back injury upon his discharge.  His problems continued for years. 

3.  The applicant provides:

* Veteran's Administration (VA) benefits award rating
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DA Form 2496 (Disposition Form) 
* DA Form 3349 (Medical Condition - Physical Profile)
* DA Form 137 (Installation Clearance Record)
* DA Form 1811 (Physical or Mental Status on Release from Active Duty)
* Various VA letters, dated in 1970, 1973, and 1980
* U.S. Army Reserve (USAR) Physical Condition Memorandum
* VA Outpatient Medical Treatment Information Card
* Statement in support of a VA claim
* 2009 VA Psychology Report



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 records show he was inducted into the Army of the United States on 2 November 1967 and he held military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic).

3.  On 2 April 1968, he underwent an airborne physical at Fort Benning, GA, and he was determined to be fully qualified for airborne duty.  He completed the Basic Airborne Course in April 1968 and he was subsequently assigned to Fort Bragg, NC.  

4.  On an unknown date in 1969 the applicant injured his back during a jump when he landed on his heels and jolted his back.  He had some back pain at the time; he was treated conservatively and relieved of the pain.  

5.  On 13 June 1969, he was issued a temporary physical profile that indicated he was medically qualified for temporary restricted duty for 3 months with weight lifting restrictions.  The attending physician indicated the applicant's condition was temporary in nature.  He was ordered returned to his unit for duty.

6.  On 21 August 1969, he was again issued a temporary physical profile that indicated he was medically qualified for temporary restricted duty for 2 months with restrictions on weight lifting, crawling, stooping, running, jumping, prolonged standing, parachuting, or marching.  The attending physician indicated the applicant's condition was temporary in nature.

7.  On 23 September 1969, he underwent a separation physical examination at Fort Bragg, NC.  He indicated that he wore glasses and that there had been no change in his physical status.  The examining physician determined the applicant was qualified for separation.
8.  On 31 October 1969, he was honorably released from active duty and transferred to the USAR Control Group (Annual Training) for completion of his remaining service obligation.

9.  On 21 April 1970, the VA awarded him a service-connected disability rating of 10% for traumatic arthritis in his back.

10.  He subsequently corresponded back and forth with the VA and on 13 February 1970, he underwent an orthopedic consultation at a VA Regional Office in San Francisco, CA.  His physical examination revealed a well-developed individual with no pain or abnormalities.  X-rays revealed no lumbar spine or abnormalities.  The impression was that of post-traumatic arthritis of the left sacroiliac joint.

11.  On 27 September 1971, an official of the Adjutant General, U.S. Army Reserve Components Personnel and Administration Center, St. Louis, MO, notified the applicant that a review of his VA medical records determined he was medically qualified for retention in the USAR and as such he would remain in the Ready Reserve.  

12.  On 27 March 2009, he underwent a psychological evaluation that resulted in a diagnosis of anxiety disorder. 

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) currently in effect 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, 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 Army Regulation 40-501 (Standards of Medical Fitness).  If the medical evaluation board (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 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.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should have been medically discharged. 

2.  The evidence of record shows during a jump the applicant landed on his heels and jolted his back.  He had some back pain at the time and he was treated conservatively with relief of the pain.  He was issued temporary physical profiles that restricted his assignment or functional limitations but he was not determined to be unfit to perform the duties required of his MOS or grade.  

3.  He underwent a separation physical and he was found medically qualified for separation.  There is no evidence in his records and he did not provide substantiating evidence that shows he was medically disqualified for retention.  There is no evidence that this jump injury would have warranted referral to 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/retired for physical disability.

4.  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.  In view of the foregoing evidence, he is not entitled to 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 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)                                         AR20100023456



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ABCMR Record of Proceedings (cont)                                         AR20100023456



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