IN THE CASE OF:
BOARD DATE: 27 March 2012
DOCKET NUMBER: AR20110018980
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 medically discharged.
2. The applicant states:
a. he sustained a severe back injury while on active duty and incurred post-traumatic stress disorder (PTSD) as a result of his combat service in Vietnam;
b. he was unable to meet Army standards while on active duty; and
c. his medical problems made him an unfit Soldier and civilian.
3. The applicant provides:
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Department of Veterans Affairs (VA) Rating Decision
* Tallahassee Orthopedic Clinic medical document
* numerous medical record extracts
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 applicants 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 applicants 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 record shows he enlisted in the Regular Army on 8 July 1968. He was trained in and awarded military occupational specialty 67N (UH-1 Helicopter Repairman).
3. His DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 6 March 1969 to 4 March 1970. It also shows he was promoted to the rank of specialist five/E-5 on 17 January 1970.
4. On 23 July 1971, the applicant was honorably released from active duty (REFRAD) by reason of "expiration of term of service" and transferred to the U.S. Army Reserve. The DD Form 214 issued at that time shows he completed 2 years, 11 months, and 28 days of creditable active duty service and was awarded or authorized the following awards:
* Air Medal
* National Defense Service Medal
* Vietnam Service Medal with three bronze service stars
* RVN Campaign Medal
* Expert Marksmanship Qualification Badge with Rifle Bar
5. The applicant's military record contains an Air Reserve Personnel Center Form 160 (Request for Statement of Service) which shows he served in the USAR from 24 July 1971 through 1 July 1974. It also includes a National Guard Bureau Form 22 (Report of Separation and Record of Service) which shows he served in the New York Army National Guard from 18 November 1986 through 1 April 1989.
6. There is no indication in the applicants records that he was issued a permanent physical profile or that he underwent a review by a medical evaluation board or physical evaluation board.
7. The applicant provides numerous medical record extracts which documents the medical treatment he received while on active duty and medical and dental treatment received from VA medical treatment facilities between 28 June 2004 and 26 August 2011. These documents include a Standard Form 600 (Chronological Record of medical Care), dated 10 May 1971, which shows he complained of back pain after he lifted a heavy object using improper body mechanics.
8. The applicant provides a Tallahassee Orthopedic Clinic medical document which shows he was assessed with "grade I spondylolisthesis L5-S1 with no neurologic deficit" on 23 July 2009.
9. The applicant provides a VA Rating Decision, dated 7 May 2010. It shows he was granted a 100-percent service-connected disability rating as a result of being unemployable due to his anxiety.
10. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 2, section VI, in effect at the time, provided for the separation of a Soldier by reason of ETS.
11. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. Chapter 3 provides guidance on presumptions of fitness. It states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he should have been medically discharged as a result of a severe back injury and the PTSD condition he incurred while in the Army.
2. By regulation, the mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.
3. The medical evidence confirms the applicant was treated for back pain while serving on active duty and the VA rating decision confirms he was granted a
100-percent service-connected disability rating based on his anxiety disorder and unemployability in 2009. However, there is no evidence of record to show either of these conditions warranted his entry into the PDES or rendered him unfit for continued service while he remained on active duty. Further, his continued service in the Reserve Components subsequent to his REFRAD confirms he was medically cleared and fit for further military service at that time.
4. Absent any evidence to show the applicant had a medical condition that rendered him incapable of reasonably performing the duties of his office, grade, rank, or rating during his active duty service, there is an insufficient evidentiary basis to grant the requested relief in this case.
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) AR20110018980
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ABCMR Record of Proceedings (cont) AR20110018980
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