BOARD DATE:	  18 November 2014

		DOCKET NUMBER:  AR20140000573 


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, to change his DD Form 214 (Report of Separation from Active Duty) to show he received a medical discharge. 

2.  He states he experienced severe medical problems in the military while assigned to the 199th Infantry Brigade (Light) in the Republic of Vietnam.  He was medically evacuated to three different hospitals while serving in Vietnam.  

3.  He believes his medical problems and issues were not properly addressed by his chain of command.  When he reported to the Company B, 1st of the 34th Battalion Commander, he had no medical records but he tried to explain his medical issues and problems and even gave the commander a copy of his medical profile and after that, he never saw the profile again.  

4.  He states he went absent without leave (AWOL) to try to get the medical help that his chain of command was not giving him.  He was a good Soldier and was awarded the Combat Infantryman Badge during his tour in Vietnam. 

5.  The applicant provides an extract of his military medical treatment records and his DD Form 214. 

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.  He enlisted in the Regular Army on 30 October 1968 and received training in military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The applicant served in the Republic of Vietnam from April to August 1969.  During this period he was awarded the Combat Infantryman Badge and was listed in a patient status. 

4.  On 11 September 1969, he reported to Company B, 1st Battalion, 34th Infantry, Fort Riley, KS, with duty as an ammunition bearer.  

5.  His medical records contain several documents:

	a.  Standard Form (SF) 502 (Clinical Record - Narrative Summary), dated 
8 July 1969, shows he was diagnosed with character behavior disorder passive-aggressive personality type with voluntary disuse of left upper extremity; acne vulgaris; and syncope secondary to hyperventilation with anxiety symptoms.  It was also noted that he was evaluated twice for weakness of the left arm.  The onset of this condition occurred in May of 1969.  He had difficulty extending the hand and fingers and a diagnosis of radial neuropathy was made.  He was given a Temporary Profile of no field duty.  However, he was seen playing basketball and was felt to be "shaming" by his unit and was ultimately sent to the field. 

	b.  DA Form 3349 (Medical Condition - Physical Profile Record), dated 
13 June 1969, indicates he was placed on a Temporary Profile for radial neuropathy, left arm.  He was medically qualified for limited duty with no field duty or heavy lifting. 

	c.  SF 519A (Radiographic Report), dated 15 September 1969, shows an examination of the skull revealed there was a vague, rounded opacification present in the roof of the right maxillary antrum which could possibly represent a polyp.

	d.  DA Form 3349, dated 15 September 1969, shows he was given a Temporary Profile for seizure disorder and he was medically qualified for duty with limitations of no driving or handling of ammunition. 

	e.  DA Form 3349, dated 18 September 1969, shows he was given a second Temporary Profile for skin/face.  He was medically qualified for duty with the limitation of no shaving for a period of 2 months.

	f.  Several other medical documents show he was seen by medical personnel for black-out spells, headaches, and that he requested to be seen by mental hygiene.  

6.  His DA Form 20 (Enlisted Qualification Record) shows he had three periods of AWOL:

* from 27 December 1969 to 4 June 1970
* from 15 to 18 June 1970
* from 30 June to 14 July 1970

7.  On 15 July 1970, he was confined at Fort Dix, NJ. 

8.  A Charge Sheet shows he was charged with three specifications of being in an AWOL status. 

9.  On 16 July 1970, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

10.  Prior to submitting his request, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.  The applicant chose not to submit any statement with his request. 

11.  His record contains an SF 88 (Report of Medical Examination), dated 23 July 1970.  This examination shows he had a Physical Profile of "111111" and a Physical Category of "A."  The examining physician annotated the applicant was qualified for separation.  

12.  An SF 89 (Report of Medical History), dated 23 July 1970, shows the applicant listed a hand injury he received in Vietnam and that he had been treated by medical personnel within the last 5 years.

13.  On 5 August 1970, the separation authority approved the applicant's request for discharge and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). 

14.  The original DD Form 214 for this period is not in the available record; however, a reissued DD Form 214 and a DD Form 215 (Correction to DD Form 214) shows his discharge was upgraded to general, under honorable conditions on 21 July 1977 under the Department of Defense Discharge Review Program (Special).  His effective date of discharge was 14 August 1970 and he served 
1 year, 3 months, and 18 days of total active service. 

15.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) states 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.  

      a.  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, and S-psychiatric.  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.  

      b.  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  

      c.  Numerical designator "4" indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator "4" does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

16.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty.  It states that although the ability of a Soldier to reasonably perform his or her duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion will not serve as the sole basis for a finding of unfitness.

DISCUSSION AND CONCLUSIONS:

1.  He requested to change his general discharge to a medical discharge due to injuries he suffered while in Vietnam and he contends that he never received proper medical treatment.   

2.  His record shows he went AWOL on numerous occasions and was charged with these offenses.  Rather than face trial by court-martial, he opted to submit a request for discharge for the good of the service.  His request was approved and he was discharged accordingly.  The evidence shows that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

3.  It is acknowledged he had a hand injury while serving in Vietnam.  However, his medical records clearly show he received medical treatment for this injury and he was given a Temporary Profile of no field duty.  The fact that he was seen playing basketball while on this profile negates the claim that his injuries prevented him from performing his duties.  As such, he was sent to the field.

4.  His record shows his Physical Profile consisted of "111111" and the Physical Category was "A."  Regulatory guidance shows a numerical designator "4" indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  However, separation medical examination shows he was qualified for separation.  

5.  Now, more than 40 years after the occurrence of his injuries, it is not reasonably feasible to make a valid diagnosis of medical unfitness.  As such, he is not entitled to a medical discharge.  





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)                                         AR20140000573





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ABCMR Record of Proceedings (cont)                                         AR20140000573



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