IN THE CASE OF:	  

		BOARD DATE:  26 March 2014

		DOCKET NUMBER:  AR20130012252 


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 received a medical discharge.

2.  The applicant states he was honorably discharged a couple of weeks after he had an accident in the office he was working in at Fort McGill, Japan.  He was hospitalized and received an operation at the hospital in Yokohama, Japan, around Christmas 1952, which resulted in blindness in his left eye.  When he left the hospital he was told he was being discharged over nine months prior to his expiration term of service.  

3.  The applicant provides:

* Three photographs
* United States of America Certification of Military Service
* DA Form 493 (Army of the United States - Separation Qualification Record)
* DD Form 217A (Certificate of Service - Armed Forces of the United States)
* National Archives and Records Administration Form 13045 (Informal Information Reply)

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 military records are not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed his records were lost or destroyed in that fire.  However, there were sufficient documents available for the Board to conduct a fair and impartial review of this case.  This case is being considered using the aforementioned documents submitted by the applicant.

3.  The applicant's DD Form 217A shows he served honorably in the Army of the United States for the period 5 November 1951 through 28 January 1953.

4.  His DA Form 493 shows he was trained as a clerk typist for 8 weeks at Fort Dix, NJ.  He subsequently served as a clerk typist and later as a personnel administrative specialist in the rank of private first class.  This form also shows that upon his separation he was transferred to the U.S. Army Reserve (USAR) for a period of 5 years.

5.  The applicant's medical records are not available for review nor did the applicant provide evidence which shows that he suffered from an illness or an injury that rendered him unable to perform the duties required of his grade or military specialty or warranted his entry into the physical disability evaluation system.

6.  The applicant provides three photographs, two of which presumably show the applicant with a patch over his left eye.

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System 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 or her office, grade, rank, or rating.  Paragraph 3-1 provides 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 may reasonably 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 he or she can be medically retired or separated.

8.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individuals.  These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier's performance of his or her duties, may compromise or aggravate the Soldier's health or well-being if they were to remain in the military service (this may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring), may compromise the health or well-being of other Soldiers, and/or may prejudice the best interests of the government if the individual were to remain in the military service.

9.  Army Regulation 15-185, the regulation under which this Board operates, states the ABCMR begins its consideration of each case with the presumption of administrative regularity and that the applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to change his honorable discharge to a medical discharge has been carefully examined; however, it was determined that there is insufficient evidence to support this request.

2.  The applicant's medical records were not available for the Board's review. However, there is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  In this instance, the "presumption of regularity" is based on Army Regulation 15-185 which states the ABCMR begins its consideration of each case with the presumption of administrative regularity and that the applicant has the burden of proving an error or injustice by a preponderance of the evidence.

3.  Unfortunately, there is no evidence in his records and the applicant provides insufficient evidence to show he was physically or mentally unfit at the time of his discharge.  A Soldier is considered unfit when the evidence establishes that the Soldier is unable to reasonably perform the duties of his or her office, grade, rank, or rating.  In the applicant's case, his separation physical is not available. Therefore, in the absence of evidence to the contrary, it reasonable to presume that the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, that all requirements of law and regulations were met, and his rights were fully protected throughout the separation process.

4.  In view of the circumstances in this case, there is insufficient evidence to grant 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)                                         AR20130012252



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ABCMR Record of Proceedings (cont)                                         AR20130012252



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