IN THE CASE OF:	  

		BOARD DATE:  14 August 2012

		DOCKET NUMBER:  AR20120001160 


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, a medical retirement. 

2.  The applicant states: 

	a.  he should have been medically retired rather than honorably discharged.

	b.  when he was discharged from the Army he was under the impression he did not qualify to be medically retired.  He underwent ankle surgery in Korea and during this surgery a tumor was found around his ankle joint.  A second surgery was scheduled upon his arrival at Fort Hood, TX to remove the tumor.  After this surgery, his doctor told him he would be assigned to a medical holding company pending a Medical Evaluation Board (MEB) and he would be medically retired due to the condition of having a very high recurrence rate of the tumor.

	c.  the surgery was done in 1999 and his expiration of term of service (ETS) was October 1999.  He was contacted by a medical staff asking why his unit had not supplied them with his packet that they had requested.  When he took this to his first sergeant and commander he was told they had sent everything.  Approximately 3 weeks before his ETS date, his noncommissioned officer-in-charge (NCOIC) informed him that his MEB had been cancelled but if he wanted them to try and reopen his case he needed to extend his ETS for 1 year.  Being young and trusting of his superiors he asked for guidance and they advised him it was best to just ETS and let the Department of Veterans Affairs (VA) take care of everything.  He now realizes this was misleading advice.


	d.  he is submitting this request because he recently realized, when his Physician Assistant asked for his medical records to review, that he had the documents in his possession to support his claim.

3.  The applicant provides numerous service medical records.

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 27 October 1995.  He completed his training and he was awarded military occupational specialty 31U (signal support systems specialist).

3.  On 16 June 1999, he underwent ankle surgery and a benign growth was removed from his right ankle.  He was issued a temporary profile "3" for lower extremities due to right ankle surgery on 17 June 1999.

4.  There is no permanent profile in the available records.

5.  A memorandum, dated 28 June 1999, states it was determined the applicant was no longer fit for retention in the military and he was scheduled for an MEB medical examination, a Physical Disability Separation Briefing, and a questionnaire to be returned to the Department of Orthopedics.  He signed a document acknowledging receipt of the memorandum on 28 June 1999.

6.  There is no evidence in the available records that shows he had an MEB.

7.  On 21 October 1999, he signed a Fort Hood Texas (FHT) Form 600-X21 (Transition Medical Option Statement), wherein he waived a medical examination.  His medical records were reviewed by a medical officer and it was determined a medical examination for transition was not required and a waiver of medical examination was granted.
8.  On 26 October 1999, he was honorably released from active duty at the completion of required active service and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining service obligation.  He completed 4 years of creditable active service.

9.  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.

10.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent (%).  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30%.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army Physical Disability Evaluation System, Soldiers who sustain or aggravate physically unfitting disabilities must meet several lines of duty criteria to be eligible to receive retirement and severance pay benefits.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been medically retired rather than honorably discharged.

2.  Evidence shows in June 1999 he had a benign growth removed from his ankle and a doctor recommended an MEB.  The applicant was given appointment times for an MEB medical examination, a Physical Disability Separation Briefing, and a questionnaire to be returned to the Department of Orthopedics.  He signed a document acknowledging receipt of the above.

3.  He was given a temporary profile for the post-operative period.  There is no permanent profile in the available records.

4.  The available record is void of any documents that show the applicant actually underwent an MEB.  He states he thought it was cancelled and he may be 


correct.  On 21 October 1999, he signed an FHT Form 600-X21, wherein he waived his right to a medical examination.  Accordingly, his medical records were reviewed by a Medical Corps officer and it was determined a medical examination for transition was not required and the applicant's waiver of medical examination was granted.

5.  There is no evidence of record and the applicant did not provide any evidence that shows a medical condition rendered him unable to perform his duties.

6.  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)                                         AR20120001160



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ABCMR Record of Proceedings (cont)                                         AR20120001160



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