IN THE CASE OF:	  

		BOARD DATE:  26 July 2012

		DOCKET NUMBER:  AR20120001690 


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 his undesirable discharge be changed to a medical discharge.

2.  The applicant states:

* He injured his back (while cleaning communication equipment he fell down a flight of stairs) in 1975 while stationed in Germany 
* Due to his back injury he was unable to do his duties
* He is 100% disabled 

3.  The applicant provides no documentary evidence.

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 was inducted into the Army of the United States on 
14 November 1972.  He completed his training and was awarded military occupational specialty 13B (field artillery crewman).  He arrived in Germany on 
25 May 1973.  On 24 October 1974, he was honorably discharged for enlistment in the Regular Army (RA).  He enlisted in the RA on 25 October 1974 for a period of 3 years.  He departed Germany on 20 August 1975.

3.  On 16 December 1975, nonjudicial punishment (NJP) was imposed against the applicant for failure to repair (two specifications).

4.  On 23 September 1976, NJP was imposed against the applicant for being absent without leave (AWOL) from 3 August 1976 to 27 August 1976.

5.  He was counseled on several occasions concerning non-support of dependents, indebtedness, lack of attempt to solve financial problems, and AWOL.

6.  On 1 October 1976, he underwent a separation physical examination and was found to be qualified for separation with a physical profile of 113121.  Item 
37 (Lower Extremities) of his Standard Form 88 (Report of Medical Examination) shows he was rated abnormal.  Item 74 (Summary of Defects and Diagnoses) of this form states he was issued a permanent "3" profile for a fractured lumbar vertebra on 27 April 1976. 

7.  On 10 November 1976, he was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel, chapter 13, for misconduct due to frequent incidents of a discreditable nature with civil or military authorities.   

8.  On 11 November 1976, after consulting with counsel and being advised of his recommended separation for misconduct, the applicant waived consideration of his case by a board of officers and representation by counsel.  He also elected to submit a statement in his own behalf but his statement is not available.

9.  On 16 November 1976, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-200, chapter 13, for misconduct due to involvement in frequent incidents of a discreditable nature with civil or military authorities.  The unit commander stated the applicant demonstrated a lack of maturity and judgment as evidenced by his record of AWOL and failure to pay his just debts.

10.  On 18 November 1976, NJP was imposed against the applicant for being AWOL from 29 October 1976 to 5 November 1976.
11.  On 3 December 1976, the separation authority approved the recommendation for separation and directed the issuance of an Undesirable Discharge Certificate.  

12.  He was discharged on 4 January 1977 with an undesirable discharge under the provisions of Army Regulation 635-200, paragraph 13-5a(1), for misconduct due to frequent incidents of a discreditable nature with civil or military authorities.  He had served a total of 4 years and 22 days of total active service with 30 days of lost time.

13.  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.  It states that the mere presence of an 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, or rank.  It states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a Soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement indicates that a Soldier is fit.

14.  Army Regulation 635-40 also provides an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.

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

16.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides 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
* S - psychiatric

17.  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.  Numerical designators "2" and "3" indicate an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his undesirable discharge should be changed to a medical discharge because he was unable to perform his duties due to a back injury he incurred in Germany in 1975. 

2.  It is acknowledged he was issued a permanent "3" profile for a fractured lumbar vertebra on 27 April 1976.  However, numerical designator "3" indicates an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  

3.  The evidence of record shows he was found to be physically qualified for separation on 1 October 1976 with a physical profile of 113121.  

4.  There is no evidence to show the applicant could not perform his duties while on active duty and he was never referred for physical disability processing; however, even if he had been referred for disability processing, his administrative separation with an undesirable discharge would have discontinued that process.  Therefore, there is insufficient evidence to show a medical discharge was warranted.  







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)                                         AR20120001690





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ABCMR Record of Proceedings (cont)                                         AR20120001690



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