IN THE CASE OF:
BOARD DATE: 14 April 2011
DOCKET NUMBER: AR20100025175
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 correction of his lost time as shown on his DD Form 214 (Report of Separation from Active Duty). He also requests his general under honorable conditions discharge be changed to honorable or a medical discharge.
2. He states he:
* is a veteran with service-connected disability
* didn't receive sick pay
* needs medical treatment
* has a severe muscle condition
3. He provides a copy of his 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 military records are not available to the Board. This case is being considered using his DD Form 214, a Department of Veterans Affairs (VA) Rating Decision, and three medical documents.
3. His DD Form 214 shows he entered active service on 23 May 1968.
4. His Standard Form 509 (Doctor's Progress Notes) indicated he was diagnosed as having a hernia, and surgery was conducted to remove it on 6 August 1968. As a result, he was granted 2 weeks of paid convalescent leave.
5. On 3 September 1968, the examining physician indicated on his Standard Form 519A (Radiographic Report), "CHEST: Again is noted the bullet fragment in the right upper lung field. The right hilum is prominent and there is slight blunting of the right [cerebellopontine] angle. The chest is otherwise normal."
6. He was discharged on 3 July 1969 with service characterized as general under honorable conditions. He completed 6 months and 29 days of creditable active service.
7. Item 27 (Remarks) of his DD Form 214 shows 197 days of lost time under Title 10, U.S. Code, section 972, for the following six periods:
* 3 October to 5 October 1968
* 31 October to 4 November 1968
* 19 November to 19 November 1968
* 23 November 1968 to 16 February 1969
* 19 February to 23 February 1969
* 28 March to 2 July 1969
8. His VA Rating Decision, dated 5 March 1998, shows he was granted a nonservice-connected pension. This document indicates the applicant's chief complaint was back and chest pain. He was receiving treatment for hypertension and he reported being treated in the mental health clinic for his nerves.
9. Army Regulation 635-5 (Separation Documents) directs that the dates of time lost during the current enlistment will be entered on the DD Form 214. Lost time under Title 10, U.S. Code, section 972, is not creditable service for pay, retirement, or veterans' benefits; however, the Army preserves a record of time lost to explain which service between date of entry on active duty and separation date is creditable service for benefits.
10. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. The unfitness must be of such a degree that a Soldier is unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his or her employment on active duty.
11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.
12. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.
13. Title 31, U.S. Code, section 3702, also known as the barring statute, prohibits the payment of a claim against the government unless the claim has been received by the Comptroller General within 6 years after the claim accrues.
DISCUSSION AND CONCLUSIONS:
1. The applicant's DD Form 214 currently reflects periods of lost time from 3 October to 5 October 1968, 31 October to 4 November 1968, 19 November to 19 November 1968, 23 November 1968 to 16 February 1969, 19 February to 23 February 1969, and 28 March to 2 July 1969, for a total of 197 days.
2. There is no evidence of record available which verifies whether these periods of lost time were AWOL or military/civilian confinement or for some other reason. However, the Army preserves a record of time lost to explain which service between date of entry on active duty and separation date is creditable service for benefits. Therefore, in the absence of evidence to show otherwise, there is insufficient evidence on which to base correction of his periods of lost time.
3. In the absence of evidence to the contrary, it is presumed that the applicant's administrative discharge proceedings were conducted in accordance with law and regulations applicable at the time.
4. It appears his chain of command determined his overall military service did not meet the standards for an honorable discharge as defined in Army Regulation 635-200 and appropriately characterized his service as general under honorable conditions discharge. There is insufficient evidence now that would warrant an upgrade to honorable.
5. Although he contends he has a severe muscle condition, his service record is void of any evidence and he did not provide any evidence showing he had any medically unfitting disabilities which required physical disability processing.
6. He has not presented sufficient evidence to show his discharge under Army Regulation 635-200 was in error or unjust or that his discharge should be changed to either an honorable or a medical discharge.
7. He was released from active duty on 3 July 1969 and no evidence is available which shows he did not receive pay for his period of convalescence. By statute, he is barred from asserting this claim.
8. The available evidence shows the VA granted him nonservice-connected pension for medical conditions. However, the VA is not required to determine fitness for duty at the time of separation. The Army must find a member physically unfit before he can be medically separated. The applicant is advised to apply to the VA for medical treatment.
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 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) AR20100025175
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20100025175
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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