IN THE CASE OF:	  

		BOARD DATE:	 23 August 2011 

		DOCKET NUMBER:  AR20110002181 


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, in effect, his honorable discharge, dated 
13 November 1989, be changed to a medical discharge.
 
2.  The applicant states:

* There is no record of him injuring his back in basic training
* He hurt his back on 3 December 1986 and again in 1987
* The Army tried to deny it
* His back pain has gotten worse due to this injury 

3.  The applicant provides two pages of a Department of Veterans Affairs (DVA) Rating Decision, dated 14 August 1995.

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.  He enlisted in the Regular Army on 14 November 1986 for a period of 3 years.  He completed his training and was awarded military occupational specialty 13B (Cannon Crewmember).  

3.  A DA Form 1811 (Physical Data and Aptitude Test Scores Upon Release from Active Duty), dated 10 August 1989, states, in pertinent part, "Your physical condition on 891113 [13 November 1989] is such that you are considered physically qualified for separation or for reenlistment without reexamination, provided you reenlist within 6 months and state that you have not acquired new diseases or injuries during the interval period when not a member of the military service."  His physical profile was 111111. 

4.  On 13 November 1989, he was honorably released from active duty under the provisions of Army Regulation 635-200 for expiration term of service.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining service obligation.    

5.  There is no evidence which shows he was diagnosed with any medical condition prior to his release from active duty on 13 November 1989. 

6.  On 15 November 1994, he was honorably discharged from the USAR.

7.  In support of his claim, he provided two pages of a DVA Rating Decision, dated 14 August 1995, which shows service connection for his back condition was denied.  The decision also states, in pertinent part, "Records also showed some complaints of back pain on December 3, 1986." 

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 4 provides for the discharge or release from active duty upon termination of enlistment, and other periods of active duty or active duty for training.  

9.  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 is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

10.  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/her office, rank, grade, or rating because of disability incurred while entitled to basic pay.

11.  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.  He contends he injured his back in basic training on 3 December 1986 and in support of his claim he provided DVA documentation which states "Records also showed some complaints of back pain on December 3, 1986." 

2.  Evidence of record shows he was found to be physically qualified for separation on 13 November 1989 with a physical profile of 111111.

3.  There is no evidence to show the applicant could not perform his duties while on active duty.  Therefore, there is insufficient evidence to show a medical discharge was warranted.

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)                                         AR20110002181



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ABCMR Record of Proceedings (cont)                                         AR20110002181



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