BOARD DATE: 16 December 2014
DOCKET NUMBER: AR20140007948
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 that his discharge be corrected to show he was either discharged or retired by reason of permanent disability.
2. The applicant states, in effect, he was in good health when he was inducted; however, when he was released from active duty it was discovered that he was a diabetic and he was required to sign a statement relieving the Army of any responsibility before being allowed to be separated instead of being discharged or retired by reason of permanent disability. He has encountered difficulty with obtaining health benefits from the Department of Veterans Affairs (VA) and has been moved to category 8.
3. The applicant provides a cover letter explaining his seven enclosures/attachments to his application.
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 for review. A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973. It is believed the applicant's records were lost or destroyed in that fire. However, the documents provided by the applicant are sufficient to conduct a fair and impartial review of this case.
3. The applicant was inducted on 9 February 1953. He completed his training as an Army Bandsman at Fort Dix, New Jersey and was transferred to Fort Richardson, Alaska. He was promoted to the rank of corporal on 30 April 1954.
4. On 5 January 1955, he was honorably released from active duty (REFRAD) at Fort Lewis, Washington and was transferred to the Army Reserve of the New York Military District, now known as the U.S. Army Reserve. He had served
1 year, 10 months, and 27 days of active service.
5. The applicant provides a copy of his induction physical; however, he does not provide a copy of his separation physical. He also provides a copy of an AFFIDAVIT in which he indicated that he did not desire to delay his separation for medical care.
6. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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/her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his/her employment on active duty. It states MTF (medical treatment facility) commanders who are treating Soldiers may initiate action to evaluate the Soldiers physical ability to perform the duties of his/her office, grade, rank, or rating. The commander will advise the Soldiers commanding officer of the results of the evaluation and the proposed disposition. If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEB.
7. Army Regulation 635-40 states MEBs are convened to document a Soldiers medical status and duty limitations insofar as duty is affected by the Soldiers status. A decision is made as to the Soldiers medical qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that he should been separated by reason of permanent disability has been noted. He has not provided sufficient evidence to show that he was unfit to perform his duties or that he should have been referred for evaluation under the PDES.
2. The applicant has also not provided sufficient evidence to show that he was improperly informed/advised at the time of his separation as to his options regarding his medical condition as it related to his separation.
3. It should also be noted that the VA operates under its own set of guidelines and the Board has no jurisdiction or authority over that agency or influence on how they administer their policies.
4. Therefore, absent evidence to show that an error or injustice exists in his case, there appears to be no basis to grant his request to change his narrative reason for separation to a discharge or retirement by reason of permanent disability.
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) AR20140007948
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ABCMR Record of Proceedings (cont) AR20140007948
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