BOARD DATE: 18 April 2013
DOCKET NUMBER: AR20120017417
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 in lieu of the 30 November 1965 discharge he currently holds.
2. The applicant states he had bone spurs in his heels during a medical examination in July 1965.
3. The applicant provides no additional evidence in support of his request.
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 was inducted into the Army of the United States on 19 July 1965. He completed basic combat training at Fort Jackson, South Carolina, in October 1965 and remained there to attend advanced individual training.
3. The applicant's records show he never advanced beyond the rank of private/E-1. His disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 29 October 1965 for being absent without leave from 20 to 21 October 1965. It also shows he accrued 10 days of lost time due to two periods of being absent without leave (AWOL) and one period of confinement between 18 and 28 October 1965.
4. The applicant's records contain a Standard Form 88 (Report of Medical Examination), dated 19 November 1965, which documents the applicant's separation medical examination. It shows the applicant received all normal clinical evaluations and that he was medically cleared for separation by the examining physician. The Standard Form 88 is void of any indication that the applicant was suffering from a disabling physical or mental condition at the time of his discharge.
5. On 19 November 1965, the unit commander submitted a recommendation for the applicant's discharge for unsuitability under the provisions of Army Regulation 635-209 (Personnel Separations Discharge Unsuitability).
6. The separation authority approved the applicant's discharge for unsuitability and directed issuance of a general discharge under honorable conditions. On 30 November 1965, the applicant was discharged accordingly. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 4 months and 12 days of creditable active service with 10 days lost time due to AWOL and confinement.
7. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. The unfitness must be of such a degree that a Soldier is unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his or her employment on active duty.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request that his unsuitability discharge be changed to a medical discharge has been carefully considered. However, there is insufficient evidence to support this request.
2. The Standard Form 88 on file confirms the applicant was determined to be medically qualified for separation by proper medical authority during his separation processing. Further, there is no medical evidence of record that indicates the applicant was suffering from a disabling medical condition that would have supported his separation processing through medical channels at the time of his discharge processing. Therefore, there is an insufficient evidentiary basis to support granting the applicant's 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 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) AR20120017417
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ABCMR Record of Proceedings (cont) AR20120017417
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