IN THE CASE OF:
BOARD DATE: 15 January 2013
DOCKET NUMBER: AR20120010196
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 he be shown to have been separated due to a physical disability.
2. The applicant states he had over 10 years of service; therefore, he believes he should have been given a medical board. He sustained an injury in 1983 that resulted in him being unable to work and led to his discharge.
3. The applicant provides copies of a DA Form 2173 (Statement of Medical Examination and Duty Status), DA Form 2446 (Request for Orders), discharge orders, National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), and 10 pages of post-service medical records.
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 enlisted in the Puerto Rico Army National Guard (ARNG) on 26 August 1976 with 1 year, 11 months, and 28 days of prior active service and 9 months and 11 days of prior inactive service.
3. A DA Form 2173, dated 13 May 1983, shows the applicant injured his right lower leg and back in a fall during a rappelling exercise during his 1983 2-week period of annual training.
4. The available evidence does not include treatment records related to the
13 May 1983 accident.
5. The applicant's record contains several notices of unexcused absences which appear to have resulted in his separation action for unsatisfactory performance due to nonparticipation in drills.
6. The applicant was honorably discharged from the ARNG and transferred to the U.S. Army Reserve Control Group (Individual Ready Reserve) on
13 March 1985. The reason for separation is listed as unsatisfactory performance. His NGB Form 22 shows 11 years, 2 months, and 26 days total service for pay.
7. The applicant's 2011 post-service medical record shows he was evaluated for low back and leg problems. The report does not include a history of the onset of the medical conditions.
8. 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 rated at less than 30 percent.
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), paragraph 2-2b 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. Paragraph 3-2a(5)b(1), provides that 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. While on ARNG annual training, the applicant was injured in a training accident on 13 May 1983. He continued to serve in his ARNG unit until 13 March 1985 when he was discharged for unsatisfactory performance.
2. The available record does not contain any evidence and the applicant has not provided any evidence of medical treatment for his 1983 injury. The post-service medical records the applicant provided do not provide a direct correlation between the 1983 injury and the reason for his discharge action.
3. While the applicant clearly sustained an injury when he was in an active duty status there is no evidence that this injury resulted in any impairment in his ability to perform his duties or that the injury was a result of his discharge.
4. The applicant's record does not show his service was interrupted as a result of a physical disability warranting a medical evaluation or disability processing.
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.
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