IN THE CASE OF:
BOARD DATE: 17 November 2011
DOCKET NUMBER: AR20110010037
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 records to show he was discharged due to 100-percent physical disability.
2. The applicant states he was assigned to the escort company for distinguished visitors to work for President Gerald Ford while assigned to the 55th Aviation Company in Korea. President Ford promoted him to "One Star Platinum Commander of all United States Forces." He was involved in "black operations" that led to freedom for the prisoners of the Vietnam War. He describes various incidents and adventures that he was involved in or knows about. He has several medical issues, but the Department of Veterans Affairs (VA) doesn't recognize his disabilities.
3. The applicant provides a copy of a letter from the VA , dated 13 January 2011, showing a summary of his benefits.
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 enlisted in the Regular Army on 21 October 1971. He completed training and was awarded military occupational specialty 52B (Power Generator Operator). He reenlisted on 25 October 1973.
3. His DA Form 20 (Enlisted Qualification Record) and DA Form 2-1 (Personnel Qualification Record Part II) show he was assigned to the 55th Aviation Company, Korea, from 1 September 1972 through 1 December 1975.
4. He was honorably released from active duty as a specialist five on 22 October 1976 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 2, by reason of completion of required service. He completed a total of 5 years and 2 days of active service.
5. The applicant's service medical records are not available.
6. In support of his request, the applicant provides a copy of a 13 January 2011 letter from the VA. The letter shows he has no service-connected rated disability.
7. Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank, or rating.
8. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 2-2b, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his military records should be corrected to show he was discharged due to 100-percent physical disability.
2. There is no available evidence to show he was granted any special duties, status, or rank.
3. There is no available evidence to show the applicant had any medical issues that impacted his ability to perform his duties while serving on active duty.
4. The applicant's continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury at the time of his separation.
5. In view of the above, the applicant's request should be denied.
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) AR20100011500
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ABCMR Record of Proceedings (cont) AR20110010037
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