IN THE CASE OF:  	  

		BOARD DATE:  17 March 2015  	  

		DOCKET NUMBER:  AR20140013598 


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 record to show he was medically retired vice discharged due to physical disqualification for duty in his military occupational specialty (MOS).   

2.  The applicant states:

a.  He was separated for physical disqualification for duty in his MOS, but he 
was informed he was being medically retired.  He was separated and returned to his home of record to await the paperwork to be medically retired that he believed he would receive.  

	b.  He received information from the Veterans Administration (VA) that he had been given a 10-percent disability rating.   

   c.  He enrolled in college and attempted for years to get his DD Form 214
(Certificate of Release or Discharge from Active Duty) corrected without any success.  Every person that he spoke to said it was someone else's responsibility and no one ever looked into the situation.  His DD Form 214 states he was separated for physical disqualification, and he was informed at the time he was being medically retired.  

   d.  He was separated from active duty still wearing a full metal leg brace.  His 
right knee has never been able to fully extend, causing a permanent limp.  He had reconstructive surgery on his knee performed again after the initial surgery failed.  Then he had another surgery by a civilian orthopedic surgeon due to the fact the VA would not assist him and it was at a great personal financial cost.  He states he was injured on active duty, in the field, and endured numerous surgeries at Fort Benning, GA, which left him permanently disabled with more surgeries in his future.  

3.  The applicant provides:

* a self-authored letter
* a letter from the VA, dated 30 May 2013
* 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.  On 12 September 1979, the applicant enlisted in the Regular Army.  He completed initial entry training and was awarded MOS 13B (Cannon Crewmember).  

3.  His service medical records are not available for review.  However, his Official Military Personnel File (OMPF) reveals in September 1981 the applicant received reconstruction surgery on his right knee.  On 14 January 1982, he acknowledged that he could not perform the duties of his MOS due to his physical profile. 

4.  The applicant had only two available options: 1) to retrain into an acceptable new MOS or 2) be separated from military service.  He requested to be reclassified and retrained into MOS's 68B, 68D or 68G (Medical Field).  However, on 15 February 1982 and again on 10 March 1982 his first sergeant notified him that he had failed to choose an acceptable MOS or take other action as necessary.   

5.  On 2 April 1982, the applicant acknowledged and consented to a voluntary discharge, and that he did not intend to extend or reenlist.  Therefore, the Headquarters, United States Army Medical Department Activity, Fort Benning, GA, initiated action to release the applicant from active duty for transfer to the Individual Ready Reserve to complete his military service obligation, if any, or to discharge him due to being physically disqualified from his MOS without retraining.  

6.  On 7 April 1982, he was honorably released from active duty under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-18 due to physical disqualification for duty in MOS.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-18 states that individuals who, within their last 6 months of service, are given physical profiles which will preclude them from further duty in their primary, secondary, or additional MOS without retraining and who do not intend to reenlist, will be separated when all the following criteria apply:

	a.  The individual has 6 months or less service remaining until discharge or release from active duty and signs a statement that he is willing to accept separation under this paragraph.

	b.  The individual has been determined by appropriate medical authority to have assignment limitations due to physical impairment that will preclude utilization in his primary, secondary, or additional MOS for a period of more than 60 days.

	c.  The individual cannot be reclassified into another MOS without retraining.  Excluded from this category are individuals who can be retrained within a period of 30 days either by on-the-job training or formal training conducted at the installation to which they are currently assigned.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for correction of his record to show he was medically retired vice discharged for physical disqualification for duty in his MOS.

2.  All documentation in the applicant's record shows that although he was disqualified for his current MOS due to his injury, he had the opportunity to retrain into another MOS.  However, he made a voluntarily election to be separated from service with no intention of extending or reenlisting.  Furthermore, there is no indication that his injury resulted in a medical condition that warranted a referral to the Army Physical Disability Evaluation System.  The fact that he had multiple surgeries pre - and post service is not evidence of error in his discharge processing or in his narrative reason for separation. 

3.  The VA awards compensation based on statutory and regulatory authority separate from that of the Army.  The VA prepares an independent decision on veterans post service medical issues that are service connected.  In addition, any medical condition that worsens over time, although it might generate a higher VA disability rating, does not automatically deem a service member to be medically retired.

4.  Further, a 30 percent or higher disability rating assigned by a PEB at the time of separation processing is required to be medically retired.  However, the applicant was not entitled to a PEB since his medical condition did not preclude him from continued military service. 

5.  The evidence of record fully supports the type of separation the applicant received.  There is no evidentiary basis upon which 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)                                         AR20140004356



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ABCMR Record of Proceedings (cont)                                         AR20140013598



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