IN THE CASE OF:	  

		BOARD DATE:	  2 July 2015

		DOCKET NUMBER:  AR20140020503 


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 was separated for medical reasons.  

2.  The applicant states he was at Walter Reed Army Medical Center for 30 days and he was told he was going to be medically discharged.  He volunteered for the military and he had planned to serve for 20 years.  He contends he had an operation and lost his vision but he was sent back to regular duty after he was told he would be medically discharged.  

3.  The applicant provides no additional evidence in support of his request.  

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 enlisted in the Regular Army on 3 March 1970.  

3.  His records contain evidence of several acts of misconduct that commenced during his advanced individual training.  His acts of misconduct included being absent without leave (AWOL), for which he received two court-martial convictions; failure to repair; failure to be at his appointed place of duty; and disobeying lawful orders.  

4.  On 19 June 1972, he was advised by his immediate commander that he was initiating a separation action against him under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) due to frequent incidents of discreditable nature with military authorities.  He was also advised of his right to:

* present his case before a board of officers
* submit statements in his own behalf
* be represented by counsel

5.  On 20 June 1972, he was advised by counsel of the proposed separation action and he elected consideration of his case by a board of officers.

6.  On 28 August 1972, a board of officers convened and after carefully considering the evidence before it, found the applicant unfit for retention in the military service because of frequent incidents of discreditable nature with military authorities.  The board recommended his discharged from the service because of unfitness with issuance of an Undesirable Discharge Certificate.

7.  His records contain a DA Form 3349 (Medical Condition – Physical Profile Record), dated 5 September 1972, which shows a medical board convened and found him medically qualified for military service with limitations due to:

* high myopia, right eye, existed prior to service (EPTS)
* amblyopia, right eye, EPTS
* retinal hole, right eye, with localized retinal detachment-treated, cure

8.  The DA Form 3349 identifies his assignment/duty limitations as follows:

* should be assigned to area where ophthalmologist readily available
* no duty requiring good binocular vision (use of both eyes) such as firing weapons (except for familiarization), driving military vehicle, duty at night
* no duty where eye strain could be incurred such as clerical work, locator, etc.

9.  On 27 September 1972, a representative from the Office of the Staff Judge Advocate reviewed the separation action, including the separation board proceedings, and found them legally sufficient.  

10.  On 28 September 1972, the separation authority approved his discharge under the provisions of Army Regulation 635-212 for unfitness.  On 6 October 1972, he was discharged accordingly.

11.  There is no evidence in the applicant's records indicating he was unable to perform his military duties due to an unfitting medical condition or that he was deemed unfit for retention at the time of his discharge.

12.  On 21 March 1978, the Army Discharge Review Board reviewed his discharge proceedings and determined he was properly discharged.  

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a states that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents.

14.  Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his or her office, grade, rank or rating.  Performance of duty despite impairment would be considered presumptive evidence of physical fitness.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (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 a medical evaluation board that is 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 in Army Regulation 40-501, chapter 3.  Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.
	
	a.  Paragraph 2-1 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 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 he or she can be medically retired or separated.

	b.  Paragraph 2-2b(1) provides that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his or her continued performance of duty (until he or she is referred to the PDES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty.  Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating.

	c.  Paragraph 2-2b(2) provides that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his records should be corrected to show he was discharged for medical reasons was carefully considered.  

2.  The evidence shows that prior to his discharge a medical board found him qualified for military service, with certain limitations, due to his right eye condition. However, because his right eye condition was not medically unfitting for retention at the time in accordance with Army Regulation 40-501, there was no basis for a medical retirement or separation.  Aside from his right eye condition, there is no evidence in his records indicating he was unable to perform his military duties due to an unfitting medical condition.  

3.  The evidence confirms his separation processing was accomplished in accordance with the applicable regulatory policy.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

4.  The applicant did not provide evidence and his records do not contain any evidence to support his contention that he should have been separated for medical reasons.  Therefore, he has failed to show that his separation processing for unfitness was in error or unjust.  As a result, there is no basis for granting him 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)                                         AR20140020503



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ABCMR Record of Proceedings (cont)                                         AR20140020503



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