IN THE CASE OF:
BOARD DATE: 13 April 11
DOCKET NUMBER: AR20100024921
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 honorable discharge from the North Carolina Army National Guard be changed to reflect that he was discharged by reason of physical disability.
2. The applicant states that he was sick at the time of his discharge and should have been medically discharged due to degenerative disc disease.
3. The applicant provides:
* A two-page handwritten letter explaining his application
* A copy of a 1988 Physicians Examination Report
* A copy of a case determination from his civilian employer
* A copy of his Honorable Discharge Certificate dated 1 December 1981.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants records, though quite limited, show that the applicant was serving in the North Carolina Army National Guard (NCARNG) in the rank of specialist five when he was honorably discharged from the NCARNG and the United States Army Reserve (USAR) due to the expiration of his term of service (ETS).
3. His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows that he had 11 years of service for pay purposes and that his military occupational specialty (MOS) was that of a power generator operator and mechanic.
4. A review of the available records failed to show any indication of any medical disabilities or evidence to show that he was not qualified for separation.
5. Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, provides 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 member may reasonably be expected to perform because of his or her office, rank, grade or rating.
DISCUSSION AND CONCLUSIONS:
1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
2. The applicants contention that he should have been medically separated from the service instead of being discharged due to this ETS has been noted and appears to lack merit.
3. While the applicant has provided documents dated in 1988 regarding his medical disabilities, he had provided no evidence to show that he was not fit for duty or separation at the time of his discharge in 1981.
4. Therefore, in the absence of evidence to show that he was not fit for duty or separation at the time of his discharge, it must be presumed that he was properly discharged in accordance with the applicable regulations with no violations of any of his rights.
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) AR20100024921
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ABCMR Record of Proceedings (cont) AR20100024921
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