IN THE CASE OF: 

		BOARD DATE:	    4 December 2012

		DOCKET NUMBER:  AR20120009009 


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 or retired instead of honorably discharged by reason of hardship.

2.  The applicant states:

* on 1 December 1970, while deployed to Korea, he was kneeling on the ground and upon standing, there was a popping sound and his knee began to swell
* he went to the dispensary on 2 December 1970 for treatment and his knee was placed in a cast
* due to swelling, the cast was removed and the knee was drained and the cast was replaced
* when he returned to the States, he saw an outside doctor and he later had multiple surgeries on his knee
* he now uses a cane or a walker to get around
* he feels he did not get the proper evaluation for his knee and that his condition was severe enough to warrant a medical severance or retirement

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Two Standard Forms 600 (Chronological Record of Medical Care)


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 inducted into the Army of the United States on 3 February 1970 and he held military occupational specialty (MOS) 11E (Armor Crewman).  Subsequent to completing MOS training, he served in Korea from 28 June 1970 to 25 July 1971.  

3.  While in Korea, he experienced pain in his knee.  The Chronological Records of Medical Care he provides show he experienced a snapping sensation in his knee.  His knee was placed in a cast and he was provided medications and placed on quarters.  

4.  On 19 January 1971, he submitted an application for separation for hardship.  His wife had been ill since December 1969 and he been home twice on emergency leave.  His request for a hardship separation was approved. 

5.  On 23 February 1971, he underwent a separation medical examination at Homestead Air Force Base, FL.  He indicated he was in good health.  The military doctor found him medically qualified for separation.  His physical profile (PULHES) was listed as "1-1-1-1-1-1-1" (no medical limitations) and his physical category code was listed as "A" (no medical disqualifications).

6.  He was honorably released from active duty in the rank/grade of private first class/E-3 on 21 June 1971 and he was transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his remaining service obligation.

7.  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 MOS
8.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states 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.  

9.  Army Regulation 635-40 also states 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 or retirement 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 creates a presumption that the Soldier is fit.   Application of the rule does not mandate a finding of fit.  The presumption is rebuttable and is overcome when the preponderance of evidence establishes the Soldier was physically unable to perform adequately the duties of his or her office, grade or rank.

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 at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from 3 February 1970 to 21 June 1971.  Part of this service was in Korea.  While there, he experienced pain in his knee.  He was treated via medication and a cast and returned to duty.  

2.  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.

3.  He applied for a hardship separation which was approved.  Prior to his release from active duty, he underwent a separation physical and he was found medically qualified for separation.  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 MOS

4.  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)                                         AR20120009009





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ABCMR Record of Proceedings (cont)                                         AR20120009009



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