IN THE CASE OF:	  

		BOARD DATE:	  11 September 2012

		DOCKET NUMBER:  AR20120005196 


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, correction of his records to show he was medically discharged instead of honorably released from active duty in 1971. 

2.  The applicant states:

* he suffered from a closed head injury causing post-traumatic epilepsy but there are no in country medical documents
* post-traumatic epilepsy symptoms take a long time to show; some of the symptoms are headaches, dizziness, and blurry vision
* he was involved in combat with leading convoys and delivering supplies to firebases; he was always under attack by artillery and small arms fire

3.  The applicant provides a 2009 medical document. 

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's records show he was appointed as a Quartermaster (QM) Corps Reserve commissioned officer of the Army and executed an oath of office on 19 December 1968.  

3.  He entered active duty on 22 January 1969 and subsequently served in Germany from 16 May 1969 to 19 December 1970 and Vietnam from 23 January 1971 to 27 November 1971.  

4.  He underwent a separation physical on 1 December 1971 at Fort Dix, NJ.  He indicated that he was in good health.  His Standard Form 88 (Report of Medical Examination) stated he was qualified for separation.  No illnesses, injuries, or restrictions are noted. 

5.  He was honorably released from active duty on 1 December 1971 and he was transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his remaining service obligation.  

6.  There is no indication in his military records that shows:

* he was issued a permanent physical profile
* he suffered an illness or an injury that rendered him unable to perform the duties required of his grade or military specialty
* he was referred to the Army Physical Disability Evaluation System (PDES)

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria prescribed in Army Regulation 40-501 (Standards of Medical Fitness).

8.  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 at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from 22 January 1969 to 1 December 1971.  Prior to his release from this period of active duty, he underwent a separation physical and he was found fully qualified for separation.  He even indicated that he was in good health at the time. 

2.  There is no evidence in his records and he did not provide any substantiating evidence that shows he was medically disqualified for retention or separation.  Nowhere in his records does it show he:

* was issued a permanent physical profile
* suffered an illness or an injury that rendered him unable to perform the duties required of his grade or military specialty
* was referred to the Army PDES

3.  Even if he suffered an injury or an illness, 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

4.  Furthermore, even if he suffered an injury that did not manifest until years later, a key element of the Army disability system is the existence of a disabling condition at the time of separation.  Again, the Army must find a member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that member can be medically separated or retired.

5.  In view of the foregoing evidence, he is not entitled to 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)                                         AR20120005196



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ABCMR Record of Proceedings (cont)                                         AR20120005196



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