IN THE CASE OF:	  

		BOARD DATE:  14 February 2012

		DOCKET NUMBER:  AR20110015953 


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, change of the reason for his discharge from physical disability, existed prior to service (EPTS) to medical retirement.

2.  The applicant states his career was cut short by a service-connected disability and given the difference in how members who are medically discharged and how those medically retired are treated, his record should show he was medically retired.

3.  The applicant provides:

* a DD Form 4 (Enlistment Record Armed Forces of the United States)
* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

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 29 November 1965.  On 11 May 1966, while he was in training at Redstone Arsenal, he requested discharge under the provisions of Army Regulation 635-40B (Physical Evaluation for Retention, Retirement, or Separation) for physical disability.

3.  In his discharge request, the applicant acknowledged he had been informed he was considered unfit for further service based on a physical disability that was considered to have existed prior to 29 November 1965, and which appeared to be not incident to or aggravated by military service.  He further stated it had been fully explained to him that he was entitled, as a matter of right, to the same processing as any other member of the Army who is separated for physical disability which includes consideration of his case by a Physical Evaluation Board (PEB).  However, he elected not to exercise this right.  He also confirmed as a result of his application and the approved findings of the medical board that corroborated the preliminary findings concerning his unfitness, he could be discharged for physical disability without further hearing.  He also acknowledged his understood that such a separation would be without disability retirement or severance pay.

4.  On 11 May 1966, a medical board found the applicant unfit for further service based on his diagnosed condition of “Psychoneurotic reaction, dissociative” and recommended his separation under the provisions of Army Regulation 635-40B.  The DA Form 8-118 (Medical Board Proceedings) confirms the applicant did not desire to continue his service and contains the applicant’s signature acknowledging he had been informed of the board’s approved findings and recommendation.

5.  On 13 June 1966, the applicant was honorably discharged under the provisions of Army Regulation 635-40A and assigned a Separation Program Number (SPN) of 277 (Physical disability, EPTS, established by medical board.  Discharged by reason of physical disability upon application by individual.  Not entitled to severance pay.)

6.  Army Regulation 635-40 contains guidance on the Army's Physical Disability Evaluation System (PDES) and more specifically, provides for the separation of enlisted members for non-service aggravated EPTS conditions.  Both the version 


of the regulation in effect at the time of the applicant’s discharge (Army Regulation 635-40B and 635-40A) and the current version requires the Soldier to request the discharge and to waive a PEB evaluation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to correct his record to show he was medically retired has been carefully considered.

2.  The evidence of record confirms the applicant’s discharge processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  Although the applicant now claims his condition was service-connected, the record confirms he was diagnosed with a disqualifying EPTS medical condition and his separation was recommended by a medical board only after the applicant requested discharge and waived his right to consideration by a PEB.  There is no evidence the applicant was unaware that his condition had been determined to have existed prior to service and in fact he acknowledges this fact in his voluntary discharge request.  Therefore, absent any evidence of error or injustice in the applicant’s separation processing, there is an insufficient evidentiary basis to support granting the requested relief.

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)                                         AR20110015953



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ABCMR Record of Proceedings (cont)                                         AR20110015953



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