IN THE CASE OF:
BOARD DATE: 17 October 2013
DOCKET NUMBER: AR20130003220
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, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) by showing he was retired due to physical disability.
2. The applicant makes no additional statement.
3. The applicant provides no additional documentation.
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. On 20 November 2000, the applicant enlisted in the Regular Army (RA). He was discharged from active duty after only 1 month and 29 days due to a medical condition that existed prior to his initial enlistment. However, his discharge packet and associated documents were not available for review.
3. The applicant's DD Form 214 indicates he was separated under the authority of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 5. It also shows he was assigned a separation program designator (SPD) code of KFN, narrative reason for his separation as "Disability, Existed Prior to Service - Medical Board," and a reentry eligibility (RE) code of "3."
4. Army Regulation 635-40 provides:
a. 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 or her office, rank, grade or rating.
b. For separation of an enlisted Soldier for non-service aggravated existed prior to service (EPTS) conditions when a Soldier requests waiver of PEB evaluation. This chapter is applicable to enlisted Soldiers on active duty for more than 30 days. If the time period exceeds 6 months or if the condition is disqualifying under Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, a Soldier is entitled to evaluation by a PEB or may waive evaluation under this chapter. The regulation requires that the Soldier be eligible for referral into the disability system; the Soldier does not meet medical retention standards as determined by the medical board; the disqualifying defect or condition existed prior to entry on current period of duty and has not been aggravated by such duty; the Soldier is mentally competent; knowledge of information about his/her medical condition would not be harmful to the Soldiers well being; further hospitalization or institutional care is not required; after being advised of the right to a full and fair hearing, the Soldier still desires to waive PEB action; and the Soldier has been advised that a PEB evaluation is required for receipt of Army disability benefits, but waiver of the PEB will not prevent applying for Department of Veterans Affairs (VA) benefits. If the Soldier is in entry level status at the time of processing, the service may be described as uncharacterized.
5. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling. It further provides at section 1201 for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends, in effect, that his DD Form 214 should be corrected by showing he was retired due to physical disability.
2. In the absence of evidence to the contrary, it is presumed that the applicant's discharge from the Regular Army in 2001 was accomplished in accordance with law and regulations applicable at the time.
3. The applicant has not made any argument that convincingly shows that what the Army did was wrong. His service medical records are not available. He has not shown any injustice or error in connection with the circumstances of his discharge.
4. 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) AR20130003220
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ABCMR Record of Proceedings (cont) AR20130003220
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