IN THE CASE OF:
BOARD DATE: 14 August 2012
DOCKET NUMBER: AR20120001920
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 record be corrected to show he has no disability.
2. The applicant states he was discharged from the U.S. Army Reserve (USAR) based on being medically disqualified and it was somehow changed to permanent disability. He claims he is not disabled and his doctor can be contacted to confirm this.
3. The applicant provides a 1989 doctor's letter and a Congressional Inquiry packet.
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. On 9 September 1981, the applicant enlisted in the USAR with prior military service.
3. The applicant's record does not include a packet containing the facts and circumstances surrounding his separation. It does include a commander's memorandum, dated 12 April 1994, Subject: Discharge Due to Medical Disqualification from Retention. This document informed the applicant a review of his medical condition resulted in a determination that he was medically unfit for retention in the USAR. Based on this determination the applicant was given the options of submitting a waiver for his medical condition; transfer to the Retired Reserve, or discharge from the USAR. The applicant signed both the transfer to the Retired Reserve and discharge options.
4. 83rd U.S. Army Reserve Command, Columbus, Ohio Orders 044-016 directed the applicant's reassignment to the Retired Reserve on 29 April 1994. The reason cited in the orders for the transfer was "Medical Disqualify."
5. The applicants records in the U.S. Army Human Resources Commands integrated web services database shows his control group as PERMANENT DISABILITY RETIRED LIST.
6. On 26 July 2005, this Board denied the applicant's request for retired pay based on the fact he should have been medically retired by reason of disability.
7. Army Regulation 135-178 (Enlisted Separations) prescribes the policies for the separation of enlisted personnel from the USAR. Chapter 12 of the version of the regulation in effect at the time of the applicant's separation provided for separation when it was determined that an enlisted member was no longer qualified for retention by reasons of medical unfitness.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request to correct his record to show he suffers from no permanent disability has been carefully considered.
2. The record confirms the applicant was separated from a USAR active status and transferred to the Retired Reserve on 29 April 1994 based on being medically disqualified for retention. There has been no subsequent change to his record to show any other reason for separation. As a result, absent any evidence of error or injustice in his separation or confirming an improper disability determination was made, there is an insufficient evidentiary basis to support granting the 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) AR20120001920
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ABCMR Record of Proceedings (cont) AR20120001920
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