IN THE CASE OF: 

		BOARD DATE:	  11 December 2012

		DOCKET NUMBER:  AR20120009061 


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 honorable discharge be changed to a medical discharge.

2.  The applicant states:

* he should have received a medical discharge and he has been fighting this issue for 61 years
* he incurred wounds during combat action in the Korean campaign and an administrative oversight was made when his military history was recorded
* he needs assistance to have his military records altered to accurately record wounds that he received during combat with the 50th AAA Gun Special Battalion (50th Anti-aircraft Artillery Battalion) on or about September 1951 between Pusan and Seoul, Korea
* he was on detail with others replenishing small arms ammunition when their vehicle was hit with what was probably a mortar shell

*	he was unconscious for several days and his injuries resulted in paralysis in his pelvis and legs
*	he was air evacuated with other wounded Soldiers from Korea to a military hospital in Japan
*	he underwent a vigorous rehabilitation treatment that resulted in the use of his legs after about two and a half months
*	he was then evacuated back to the United States via Midway Island and Tripler Hospital in Hawaii; from San Francisco he was assigned to Beaumont Army General Hospital in El Paso, TX
*	he has been unsuccessful in his efforts and questions whether there is a source within the Army or Federal Government capable of providing the information he needs

3.  The applicant provides self-authored statements and a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States). 

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 military records are not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  His DD Form 214 shows:

* he enlisted in the Regular Army at Corpus Christi, TX, on 9 August 1949 for a period of 3 years
* he completed training and was awarded military occupational specialty 4602 (Self-Propelled Gun Carriage or Prime Mover Driver) 
* he was advanced to the rank of private first class on 25 August 1951
* item 29 (Wounds Received as a Result of Action with Enemy Forces) has the entry "None"   
* he authenticated the form with his signature at the time of his discharge

4.  The applicant's DD Form 214 shows he was awarded the Korean Service Medal with 2 bronze service stars.


5.  On 23 September 1952, he was honorably discharged at Fort Bliss, TX, due to expiration of his term of service.  He completed 3 years, 1 month, and 15 days of creditable active military service and was credited with 1 year, 2 months, and 13 days of foreign service.

6.  On 3 March 2002, a DD Form 215 (Correction to DD Form 214) was issued awarding the applicant the following:

* National Defense Service Medal
* Army Good Conduct Medal
* United Nations Service Medal

7.  The applicant's name does not appear on the Korean War Casualty Listing.

8.  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

9.  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.  

10.  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.

11.  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's request to change his honorable discharge to a medical discharge was carefully considered.

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.  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.

5.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

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)                                         AR20120009061



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ABCMR Record of Proceedings (cont)                                         AR20120009061



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