IN THE CASE OF: 

		BOARD DATE:	    11 June 2014

		DOCKET NUMBER:  AR20130017585 


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 the narrative reason for separation in 1973 from "Early Separation to Attend School" to "Permanent Disability - Retirement." 

2.  The applicant states:

* the letter, dated 30 March 2011, from retired Air Force Lieutenant Colonel (LTC) P--l P. M----s (PPM) shows he was medically discharged
* he had a conversation on 30 March 2011 with LTC PPM who stated he remembers visiting him in the hospital after his nervous breakdown
* Mr. PPM also asked the unit first sergeant (1SG) if the applicant could be discharged from the Army with no awareness that he was being separated 
* he has no memory of the request for early separation to attend school but he remembers anticipating a reenlistment for another 3 years 
* he wanted to train in the Cardiopulmonary Technician Program at Walter Reed Bethesda Medical Center 
* Major (MAJ) D---d W. S----n (DWS) even recommended him for attendance to this program and his letter corroborates this contention
* he can only assert the early separation would have been to attend the Cardiopulmonary Technician Course offered by the Army Medical Division 

3.  The applicant provides:

* Department of Veterans Affairs (VA) rating decision, dated 22 September 2010 
* VA Compensation and Pension (C&P) Examination, dated 14 August 2013
* Letter of Recommendation from MAJ DWS, dated 3 July 1972
* Letter from LTC PPM, dated 30 March 2011
* DA Form 2166-4 (Enlisted Efficiency Report)
* Article, dated 27 December 1972, from the Fayetteville Observer newspaper
* Extract of Title 10, U.S. Code (USC), section 1218
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* U.S. Army Reserve (USAR) discharge orders, dated 25 March 1976

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 for 3 years on 24 April 1970.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 91B (Medical Specialist). 

3.  After Parachutist training, Phase I of Special Forces (SF) training, and SF Medical Specialist training, he was assigned to Company B, 2nd Battalion, 5th SF Group, Fort Bragg, NC.  

4.  On 7 November 1972, he submitted a request for Early Separation to Attend School.  He stated that he was planning a career in the Physician Assistant Program offered at Stanford University, CA.  This, coupled with the circumstances in his family that obligated him to become responsible for the care and welfare of his younger sister and older grandmother, made him feel it was in the best interests of the military and him if he were separated early to attend school, in accordance with Army Regulation (AR) 635-200 (Personnel Separations).  His chain of command recommended approval.

5.  On 1 December 1972, the approval authority approved his request for early separation to attend school. 

6.  On 23 January 1973, he completed a DA Form 664 wherein he indicated he was being processed for separation from the Army and he has been advised that he is entitled to file an application for compensation from the VA.  He indicated he had not filed an application for such compensation and that he may do so at a later date. 

7.  He was honorably released from active duty on 23 January 1973 and he was transferred to the USAR Control Group (Reinforcement) to complete his remaining service obligations.  His DD Form 214 shows he completed 2 years and 9 months of active duty.  Item 11c (Reason and Authority) of this form shows the entry, "AR 635-200, Separation Program Number (SPN) 413, Early Separation to Attend School." 

8.  He was ultimately honorably discharged from the USAR on 1 April 1976 after having fulfilled his military service obligations. 

9.  He provides: 

	a.  VA rating decision, dated 22 September 2009, awarding him service-connected disability compensation, effective 31 July 2009, for tinnitus, bilateral hearing loss, and post-traumatic stress disorder (PTSD). 

	b.  C&P examination, dated 14 August 2013, in relation to his VA claim, specifically PTSD. 

	c.  A letter of recommendation, dated 3 July 1972, from MAJ DWS, the Chief, Medical Division, Special Forces School, Fort Bragg, NC, recommending him for the Cardiopulmonary Technician Course. 

	d.  A letter, dated 30 March 2011, from LTC PPM, a U.S. Air Force Retired officer, and titled: Stress Injury to Applicant, wherein he states that from 1971 to July 1973 he was the company commander of B Company, 2nd Battalion, 5th SF Group.  He adds that the applicant sustained a stress injury while performing a heroic act in an attempt to save the life of Sergeant (SGT) S-----n E. D--n (SED), of Company A, 2nd Battalion, 504th Infantry, on 23 December 1972, during a medical rotation at the hospital.  He suffered what appears to be a mental breakdown and he was hospitalized.  A short time later, he was medically discharged from the Army. 

	e.  DA Form 2166-4 for the rating period December 1971 through November 1972 that shows the applicant performed his duties in an outstanding manner and that his attitude and judgment made him a great asset to his unit and the Army.  

	f.  Article, dated 27 December 1972, from the Fayetteville Observer newspaper, confirming the death of SGT SED as a result of an automobile accident. 

	g.  Extract of Title 10, U.S. Code (USC), section 1218, stating a member of an armed force may not be discharged or released from active duty because of disability until he has made a claim for compensation, pension, or hospitalization to be filed with the VA or has refused to make a claim or has signed statement that his rights to such a claim had been explained to him or has refused to sign a statement. 

10.  There is no indication in his military records that shows:

* he was issued a permanent physical profile
* he was diagnosed with a medical condition that failed retention standards in accordance with AR 40-501 (Standards of Medical Fitness)
* he suffered an illness or an injury that rendered him unable to perform the duties required of his grade or military specialty
* he was referred to the Army Physical Disability Evaluation System (PDES) and/or was found to have an unfitting medical condition

11.  AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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 or her office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria prescribed in Army Regulation 40-501 (Standards of Medical Fitness).

12.  Title 10, USC, 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, USC, 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 24 April 1970 to 23 January 1972.  Prior to his separation, on 7 November 1972, he submitted a written request to voluntarily separate from active duty earlier than the date of his separation to attend school.  His chain of command recommended approval and the separation authority approved his request on 1 December 1972.  He was honorably separated on 23 January 1973 and he was assigned SPN 413, indicating the reason for separation is "early Separation to Attend School."  

2.  With respect to the medical separation:

	a.  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, he was diagnosed with a medical condition that failed retention standards in accordance with AR 40-501, he suffered an illness or an injury that rendered him unable to perform the duties required of his grade or military specialty, or he was referred to the PDES and/or was found to have an unfitting medical condition.

	b.  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.

	c.  Furthermore, even if he suffered an injury that did not manifest until years later, a key element of the Army disability system is the existence of a disabling condition at the time of separation.  Again, the Army must find a member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that member can be medically separated or retired.  In view of the foregoing evidence, he is not entitled to the requested relief.

3.  With respect to his argument he misinterprets the law, the regulation, and the reason for his own separation:  

	a.  He provides a letter of recommendation, dated 3 July 1972, from MAJ DWS, the Chief, Medical Division, Special Forces School, Fort Bragg, NC, recommending him for the Cardiopulmonary Technician Course.  This letter is a simple letter of recommendation and is not relevant to his separation.  He neither attended this course nor was his request for early separation to attend this course as he believes. 

	b.  He provides a letter, dated 30 March 2011, from LTC PPM, a retired officer, who states the applicant sustained a stress injury while performing a heroic act in an attempt to save the life of SGT SED on 23 December 1972, during a medical rotation at the hospital.  He suffered what appears to be a mental breakdown and he was hospitalized.  A short time later, he was medically discharged from the Army.  This statement is neither accurate nor substantiated. The applicant was not medically discharged.  It is unclear upon what authority or source document the retired officer bases his statement. 

	c.  The DA Form 2166-4 for the rating period December 1971 through November 1972 that shows the applicant performed his duties in an outstanding manner and that his attitude and judgment made him a great asset to his unit and the Army further proves that the applicant was able to perform his duties.  There is no evidence of record to show his performance of duty deteriorated between November 1972 and his separation on 23 January 1973.

	d.  The extract of the law provided by the applicant is not relevant to his case. This section of the law applies to Soldiers who were discharged for disability.  The applicant was clearly separated because he wanted to.  Furthermore, he was advised of his rights regarding submitting a VA claim and he did in fact sign a statement in relation to his right to file a claim.  

4.  After a comprehensive review of the applicant's record and the evidence he provided, it is clear that his DD Form 214 reflects the correct reason for separation and there is no reason to change it.  Therefore, 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)                                         AR20130017585





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ABCMR Record of Proceedings (cont)                                         AR20130017585



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