BOARD DATE:	  30 July 2013

		DOCKET NUMBER:  AR20120022360 


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 honorable discharge be changed to a medical retirement.

2.  The applicant states:

	a.  his actual release from the Individual Ready Reserve (IRR) was 
28 September 1995.

	b.  in 1980/1981, he had a history of pneumothorax on his left lung and had a pleural abrasion and stapling of pleural blebs (left thoracotomy).  He was sent to Fort Sam Houston and evaluated.  A medical record, dated 25 March 1981, states if a pneumothorax recurs he should be medically discharged from the military at that time.  

	c.  in 1985, he had the same history of pneumothorax on his right lung and had a thoracotomy.  He was able to stay in the Army until September 1992 when he was told by his first sergeant that he could not reenlist because he was not promoted to staff sergeant.  He would have been promoted to staff sergeant in the Gulf War if the S-1 would have sent the correct paperwork.  He met the cut off score.  If he had been promoted on time he would have been able to reenlist and complete his last 7 years for retirement.

	d.  he was never given a retirement physical.

	e.  he went to the Department of Veterans Affairs (VA) and was rated with 40% disability and is currently being evaluated because of breathing problems. 

3.  The applicant provides 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 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.  After having had prior service, the applicant enlisted in the Regular Army on 
4 January 1980.  He completed his training and was awarded military occupational specialty (MOS) 76Y (unit supply specialist).

3.  He provides a medical record, dated July 1980, which shows he was diagnosed with left pneumothorax.  

4.  He provides a medical record, dated 25 March 1981, which states "should a pneumothorax recur, I feel the patient should at that time be medically discharged."  

5.  He was promoted to sergeant effective 1 August 1983.

6.  A DA Form 3340 (Request for Regular Army Reenlistment or Extension), dated 2 September 1983, states he met the height and weight criteria and was physically qualified and capable of performing the duties of his primary MOS.

7.  He provides a medical record, dated 6 June 1985, which shows he was diagnosed with spontaneous right pneumothorax.  

8.  A DA Form 3340, dated 13 March 1987, states he met the height and weight criteria and was physically qualified and capable of performing the duties of his primary MOS worldwide.

9.  He served in Southwest Asia from 30 December 1990 to 13 June 1991.  

10.  His DA Form 2A (Personnel Qualification Record, Part I), prepared on 4 May 1992, shows he had a physical profile of 111111.

11.  On 29 September 1992, he was honorably separated under the Fiscal Year 1992 Enlisted Voluntary Early Transition Program.  He enlisted in the U.S. Army Reserve (USAR) Control Group (IRR) on 30 September 1992 for a period of 3 years.  

12.  On 3 October 1995, he was honorably discharged from the USAR.

13.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

14.  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 of less than 30 percent.

15.  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 a 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.  It states that disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who 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 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 indicates that a Soldier is fit.





16.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):

* P - physical capacity or stamina
* U - upper extremities
* L - lower extremities
* H - hearing and ears
* E – eyes
* S - psychiatric

17.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends he would have been able to reenlist and complete his last 7 years for retirement if he had been promoted on time, he claims he should have been medically retired rather than honorably discharged. 

2.  The medical records provided by the applicant that show he had a history of pneumothorax during the period 1980 to 1985 were carefully considered.  Notwithstanding the medical record that stated he should be medically discharged if a pneumothorax recurred, evidence shows he was found physically qualified and capable of performing his primary MOS in September 1983 and March 1987.  In addition, in March 1992, he had a physical profile of 111111, which indicates he was medically fit for any military assignment.   

3.  The evidence shows he was separated on 29 September 1992 following his deployment to Southwest Asia.  He continued to serve in the USAR until he was honorably discharged on 3 October 1995.

4.  There is no evidence of record and the applicant did not provide any evidence that shows a medical condition rendered him unable to perform his duties.    Therefore, there is insufficient evidence to show his medical retirement was warranted.


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)                                         AR20120022360





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ABCMR Record of Proceedings (cont)                                         AR20120022360



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