BOARD DATE:	  14 May 2013

		DOCKET NUMBER:  AR20120019676 


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.

2.  The applicant states he was told he should apply for disability and/or compensation after discharge.

3.  The applicant provides:

* DA Form 3349 (Medical Condition - Physical Profile Record)
* Statement of Medical Condition

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 records show he enlisted in the Regular Army on 1 October 1969 for 2 years.  He held military occupational specialty (MOS) 76A (Supplyman).  Subsequent to completion of training, he was assigned to various units at Fort Polk, LA. 

3.  He was honorably released from active duty in the rank/grade of private first class/E-3 on 30 September 1971 by reason completion of his required active duty service.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining service obligation.

4.  On 3 May 1973, he enlisted in the Missouri Army National Guard (ARNG). However, on 1 September 1973, he was separated from the ARNG due to continuous and willful absence from military duty.  He was transferred back to the USAR Control Group to complete his remaining service obligation. 

5.  His service medical records are not available for review with this case.  Additionally, there is no indication in his military records that shows:

* he was issued a permanent physical profile that prevented him from performing the duties required of his grade and/or military specialty 
* he suffered an illness or an injury that rendered him unable to perform the duties required of his grade or MOS
* he suffered a an injury/illness in line of duty that warranted him entry into the Army Physical Disability Evaluation System (PDES)

6.  He submits:

	a.  A DA Form 3349, dated 14 December 1970, that shows he was issued a permanent profile for degenerative arthritis to the right hip and Legg Perthess disease (childhood hip disorder).  The profile prevented crawling, stooping, running, jumping, prolonged marching or standing, and/or strenuous exercise.  However, the profiling officer indicated the applicant "is medically qualified for duty with permanent limitations as evidenced by a medical examination and a review of his health record this date 14 December 1970." 

	b.  A DA Form 3082-R (Statement of Medical Condition), dated 30 September 1971, that shows he underwent a separation physical at the U.S. Army Hospital at Fort Polk, LA and that there was no change in his medical condition. 

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.  

8.  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.

9.  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 served on active duty from 1 October 1969 to 30 September 1971.  It appears, shortly after his entry on active duty, he was diagnosed with a medical disorder that appears to have existed prior to service.  He was issued a physical profile that restricted some of his activities but determined he was qualified for duty. 

2.  He continued his service in the Regular Army until 30 September 1971 when he was honorably released from active duty by reason of completion of his required service.  His medical records are not available for review with this case. However, it appears prior to his release from active duty, he underwent a separation physical and he was found medically qualified for separation.  

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 physical profile that prevented him from performing the duties required of his grade and/or military specialty 
* he suffered an illness or an injury that rendered him unable to perform the duties required of his grade or MOS
* he suffered a an injury/illness in line of duty that warranted him entry into the Army PDES

4.  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.

5.  Subsequent to his release from active duty, he enlisted in the ARNG.  Such enlistment would have required a finding of meeting medical standards.  

6.  In view of the foregoing evidence, he is not entitled to the 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)                                         AR20120019676





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ABCMR Record of Proceedings (cont)                                         AR20120019676



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