IN THE CASE OF:
BOARD DATE: 10 January 2013
DOCKET NUMBER: AR20120009833
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 reason for discharge be changed to physical disability.
2. The applicant states, in effect, his discharge should be changed to physical disability because of injuries he received while in Infantry training and serving in Korea. He states the Department of Veterans Affairs (VA) has granted him a 40 percent disability for two conditions but he warrants a disability retirement because he is suffering from:
hearing loss sleep apnea low back pain ringing in the ears
knee problems post-traumatic stress disorder dizziness and equilibrium problems cirrhosis of the liver from hepatitis C shots muscle cramps and spasms in his thighs and lower legs
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).
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. The applicant's service medical records are believed to be on permanent loan to the VA and are not available for review.
3. The applicant enlisted in the Regular Army on 23 November 1982, completed training, and was awarded the military occupational specialty 11B (Infantryman).
4. He served in Korea from 17 March 1983 through 27 March 1984.
5. He received nonjudicial punishment under Article 15, Uniform Code of Military Justice on:
a. 2 November 1983, for possession of marijuana; and
b. 13 February 1984, for willfully breaking 8 window panes and failure to go to his place of duty.
6. The applicant was released from active duty on 28 March 1984 under Army Regulation 635-200, chapter 13 for unsatisfactory performance. He received an under honorable conditions characterization of service.
7. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.
8. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.
9. Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, they must be unable to perform the duties of their office, grade, rank or rating.
10. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that when a member is being separated by reason other than physical disability, their continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that they were unable to perform their duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit. It 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant has not provided and the record does not contain any evidence that he was unable to perform his duties because of injuries sustained while on active duty.
2. Physical disability separation pay or retirement compensates the individual for loss of their career. The applicant's service was not interrupted because of a physical disability incurred or aggravated in service but rather due to unsatisfactory performance on his part.
3. The applicant's administrative separation was accomplished in compliance with applicable regulations. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.
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) AR20120009833
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ABCMR Record of Proceedings (cont) AR20120009833
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