IN THE CASE OF:	  

		BOARD DATE:	  5 April 2012

		DOCKET NUMBER:  AR20110015345 


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, upgrade of his undesirable discharge to an honorable discharge and change of his narrative reason for separation from unfitness to a medical discharge by reason of physical disability.

2.  The applicant states he was severely injured in an accident in July 1972 that caused his military service to suffer and resulted in subsequent hardships.

3.  The applicant provides 15 pages from his service medical records dated between 17 July 1972 and 14 January 1974.

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 enlisted in the Regular Army on 30 September 1971.  He completed his initial training and he was awarded military occupational specialty 11E (Armor Crewman).

3. On 3 March 1972, the applicant was advanced to rank/grade of private first class (PFC)/E-3.  On 14 June 1972, he was discharged for the purpose of immediate reenlistment.

4.  A DD Form 261 (Report of Investigation), dated 14 August 1972, reports that:

	a.  the applicant sustained a fracture to his distal right radius (short bone in right forearm) due to a motorcycle accident;

	b.  the applicant was charged with failing to maintain control of his vehicle; and

	c.  the applicant's injuries were determined to be in the line of duty.

5.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in Item 44 (Lost Time) that he was:

	a.  absent without leave(AWOL) from 2 to 5 November 1973 (4 days); and

	b.  confined at hard labor from 13 December 1973 to 10 January 1974
(29 days).

6.  A DA Form 3349 (Medical Condition - Physical Profile Record), dated 
14 January 1974, indicated that the applicant was given a temporary profile for a fractured right wrist.  He was restricted from performing any duty requiring the handling of heavy materials over 15 pounds, including weapons.  He was not to do any over head work, pull-ups, or push-ups.  This temporary limitation was to be automatically terminated on 1 March 1974.

7.  A DA Form 3322 (Report of Mental Status Evaluation), dated 28 February 1974, indicates the applicant's behavior was normal.  He was fully alert and oriented and displayed a level mood.  His thinking was clear, his thought content was normal and his memory was good.  There was no significant mental illness.

8.  On 1 March 1974, the applicant underwent a medical examination.

	a.  A Standard Form (SF) 93 (Report of Medical History) completed by the applicant indicates he was in good health.  He did not indicate that he had any medical conditions.
	b.  An SF 88 (Report of Medical Examination) indicates that the physician found the applicant to be qualified for separation.  No medical conditions or concerns were noted on the report.  His physical profile was shown as
P – 111111, indicating a permanent evaluation with no limitations.

9.  The applicant's discharge packet is not available for review in his military records.  However, his record contains a DD Form 214 (Report of Separation from Active Duty) that shows he was administratively discharged on 7 March 1974 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5a with a separation program designator (SPD) code of 28B, indicating unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities.  His service was characterized as under other than honorable conditions with issuance of a DD Form 258A (Undesirable Discharge Certificate).  He completed 2 years,
4 months, and 6 days of total active service with 32 days of lost time due to AWOL and confinement.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  The applicant's service medical records are not available for review.  However, a review of the medical evidence provided by the applicant shows:

	a.  from 17 to 21 July 1972, he was hospitalized due to injuries received in an motorcycle accident;

	b.  he was given a temporary profile for a fractured wrist for the period 25 July to 8 august 1973;

	c.  from January through 19 September 1973, he was treated for pain from old wrist and arm injuries;

	d.  on 21 September 1973, he was injured in a motorcycle accident resulting in abrasions to his right leg and hand requiring cleaning and dressing;

	e.  on 3 October 1973, he complained of having burning sensations in his knee and he was instructed on in-home isometrics;

	f.  on 4 December 1973, he was examined and diagnosed with a sprain to his right foot that occurred in the billets the day prior; and

	g.  on 14 January 1974, he was examined concerning his old injuries.  He was found to have good range of motion.

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

13.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)), paragraph 2-9, provides that the Board begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 

14.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, and appointment, including officer procurement programs; medical fitness standards for retention and separation, including retirement; medical fitness standards for diving, Special Forces, Airborne, Ranger, free fall parachute training and duty, and certain enlisted military occupational specialties (MOSs) and officer assignments; medical standards and policies for aviation; physical profiles; and medical examinations and periodic health assessments.  It states in:

	a.  Chapter 7, physical profiling, 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.

	b.  This regulation further provides that a profile serial is made more informative by adding one of these two modifiers: "P" (permanent) or "T" (temporary).  The "T" modifier indicates that the condition necessitating a numerical designator "3" or "4" is considered temporary, the correction or treatment of the condition is medically advisable, and correction will usually result in a higher physical capacity.  In no case will individuals in military status carry a "T" modifier for more than 12 months without positive action being taken either to correct the defect or to effect other appropriate disposition.


15.  Army Regulation 635-200 (Personnel Separations) governs the policies and procedures for the separation of enlisted personnel.  It states:

	a.  Chapter 13 applied to separation for unfitness and unsuitability.  At that time, chapter 13 provided for the separation of individuals for unfitness whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  When separation for unfitness was warranted an Undesirable Discharge Certificate was normally issued.

	b.  in paragraph 3-7a 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.

	c.  in paragraph 3-7b that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to an honorable discharge due to a physical disability.

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.

3.  The applicant has not provided any evidence showing that his temporary medical conditions resulted in an unfitting condition warranting a physical disability discharge.  Furthermore, there is no available evidence of record to support such contention.  Because the applicant's medical condition was not medically unfitting for retention at the time in accordance with Army Regulation 40-501, there was no basis for medical retirement or separation.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20110015345



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ABCMR Record of Proceedings (cont)                                         AR20110015345



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