BOARD DATE:	  2 May 2013

		DOCKET NUMBER:  AR20120019022 


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 a medical retirement.

2.  The applicant states he should have been retired due to a stomach disorder and the "experimental" surgery that went bad.  He recently became aware that he could have/should have been medically retired due to his stomach condition, but instead he had to leave the Army due to health problems with no benefits.  He was serving in Germany with a pending reassignment as a first sergeant at a basic training command but due to the problems with his stomach he was discharged.  He should be compensated for this career loss.

3.  The applicant provides:

* DD Form 214 (Report of Transfer or Discharge) for the period
8 September 1953 through 7 September 1956
* National Archives and Records Administration (NA) Form 13038 (Certification of Military Service) for the period 15 June 1959 through
29 March 1962
* DD Form 214 for the period 30 March 1962 through 29 February 1968

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 enlisted in the Regular Army on 8 September 1953 for a period of 3 years.  He completed training and was awarded military occupational specialty 130.00 (Armor Basic).  He was honorably released from active duty on 7 September 1956 at the expiration of his term of service and he was transferred to the U.S. Army Reserve (USAR) to complete his remaining Reserve obligation. He again enlisted on 15 June 1959 with an immediate reenlistment on 30 March 1962.

3.  Other than his separation Standard Form (SF) 89 (Report of Medical History) and SF 88 (Report of Medical Examination), the applicant's service medical records are believed to be on permanent loan to the Department of Veterans Affairs and are not available for review.

4.  His 16 February 1968 SF 89 shows he had a vagotomy and a pyloroplasty on 11 December 1967 with no reported residuals.

	a.  Vagotomy is a treatment option for chronic duodenal ulcers by surgical cutting of the vagus nerve to reduce acid secretion in the stomach.

	b.  Pyloroplasty is a surgical procedure in which the lower portion of the stomach, the pylorus, is cut and resutured, to relax the muscle and widen the opening into the intestine.

5.  His 16 February 1968 SF 88 does not show any residuals from his vagotomy and pyloroplasty except for the surgical scar.  He was found to be qualified for separation.

6.  On 29 February 1968, the applicant was honorably discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) by reason of early separation of overseas returnee.

7.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-3b(1) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his/her office, grade, rank or rating.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army physical disability evaluation system (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It states:

	a.  There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

	b.  In paragraph 3-1 that the mere presence of 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/her office, rank, grade or rating.

	c.  In paragraph 3-2b(1) 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 he can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

	d.  In paragraph 3-2b(2) that when a member is being separated by reason other than physical disability, his/her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he/she was unable to perform his/her 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not provided and the available records do not contain any evidence that he was suffering from any medical condition that warranted 

processing through the PDES for a medical discharge or retirement.  At the time of separation his physical examination by competent medical authority determined the applicant was medically fit for retention or appropriate separation. Accordingly, the applicant was separated from active duty for reasons other than physical disability.

2.  In view of the foregoing, there is an insufficient evidentiary basis for 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 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)                                         AR20120019022



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ABCMR Record of Proceedings (cont)                                         AR20120019022



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