RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         9 March 2006
      DOCKET NUMBER:  AR20050010472


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Ms. Jeanette B. McPherson         |     |Member               |
|     |Mr. David W. Tucker               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his honorable discharge (HD) of

24 August 1983 be changed to a medical retirement.

2.  The applicant states, in effect, he was offered a medical discharge in
1977, but he turned it down and instead chose to be reclassified into
another military occupational specialty (MOS).  He claims that in the new
MOS, he was unable to be promoted or hold a leadership position because of
his permanent profile on his right ankle.  As a result, he was forcibly
discharged at the 10-year point.  He claims his discharge was not his
choice, and he feels he should have been given the medical discharge he was
offered in 1977.  He asks that he now be awarded a medical retirement.

3.  The applicant provides the service medical treatment records that were
on file with the Department of Veterans Affairs (VA) in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice) that occurred on 24 August 1983.  The application submitted in
this case is dated
11 July 2005.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's record shows that he initially enlisted in the Regular
Army and entered active duty on 16 November 1972.  He was trained in and
awarded military occupational specialty (MOS) 11B (Infantryman).

4.  On 11 September 1974, the applicant was honorably discharged for the
purpose of immediate reenlistment, and on 12 September 1974, he reenlisted
for six years.

5.  On 14 April 1978, he was reclassified into MOS 42D (Dental Lab
Specialist), and on 1 November 1978, he was given a permanent 3 profile for
his lower extremities based on degenerative joint disease in the right
ankle.

6.  On 8 August 1983, the applicant underwent a separation physical
examination at Fort Jackson, South Carolina.  The Report of Medical
Examination (SF 88) shows that the attending physician determined the
applicant was qualified for retention/discharge and it documents no
physically disqualifying condition that would have warranted his separation
processing through medical channels.

7.  On 24 August 1983, the applicant was honorably discharged by reason of
expiration of term of service (ETS).  At the time, he had completed a total
of
10 years, 9 months, and 9 days of active military service.

8.  The applicant provides the military medical treatment records that are
on file with his VA record.  These records outline the various medical
treatments the applicant received while he was on active duty.  These
records do not include Medical Evaluation Board (MEB) or Physical
Evaluation Board (PEB) proceedings.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) establishes the Army 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.
 In each case, it is necessary to compare the nature and degree of physical
disability present with the requirements of the duties the Soldier
reasonably may be expected to perform because of his or her office, grade,
rank, or rating.  Separation by reason of disability requires processing
through the PDES.

10.  Chapter 4 of the same regulation contains guidance on processing
through the PDES, which includes the convening of a Medical Evaluation
Board (MEB) to document a Soldier's medical status and duty limitations
insofar as duty is affected by the soldier's status.  If the MEB determines
a soldier does not meet retention standards, the case will be referred to a
Physical Evaluation Board (PEB).  The PEB evaluates all cases of physical
disability equitably for the Soldier and the Army.  The PEB investigates
the nature, cause, degree of severity, and probable permanency of the
disability of soldiers whose cases are referred to the board.  It also
evaluates the physical condition of the Soldier


against the physical requirements of the Soldier's particular office,
grade, rank, or rating.  Finally, it makes findings and recommendations
required by law to establish the eligibility of a Soldier to be separated
or retired because of physical disability.

11.  Title 38, United States Code, sections 1110 and 1131, permits the VA
to award compensation for a medical condition which was incurred in or
aggravated by active military service.  The VA, however, is not required by
law to determine medical unfitness for further military service.  The VA,
in accordance with its own policies and regulations, awards compensation
solely on the basis that a medical condition exists and that said medical
condition reduces or impairs the social or industrial adaptability of the
individual concerned.  The VA can evaluate a veteran throughout his
lifetime, adjusting the percentage of disability based upon that agency's
examinations and findings.  However, these changes do not call into
question the application of the fitness standards and the disability
ratings assigned by proper military medical authorities during the
applicant’s processing through the Army PDES.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should receive a medical retirement
and the supporting documents he submitted were carefully considered.
However, there is insufficient evidence to support his claim.

2.  The medical treatment records provided by the applicant thoroughly
outline the medical treatment he underwent while he was on active duty.
However, they fail to show that he had a physically disabling condition
that would have warranted his separation processing through the PDES.

3.  The evidence of record confirms that the applicant's entire medical
history was evaluated and he was thoroughly examined during his separation
physical examination.  The SF 88 documenting this examination confirms he
was cleared for retention/separation by competent medical authority.  There
is no medical evidence that indicates he was physically disqualified from
further military service.

4.  The applicant is advised that absent evidence showing he suffered from
a physically disabling condition that would have warranted his separation
processing through medical channels, the VA is the appropriate agency to
query regarding treatment for service connected medical conditions.
Further, it is the appropriate agency to petition for compensation for
service connected disabilities.
5.  In order to justify correction of a military record, the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 24 August 1983.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 23 August 1986.  The applicant did not file within the 3-year statute of
limitations and has not provided a compelling explanation or evidence to
show that it would be in the interest of justice to excuse failure to
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RTD__  ___JBM_  __DWT__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  _____Richard T. Dunbar ___
                                            CHAIRPERSON


                                  INDEX

|CASE ID                 |AR20050010472                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/03/09                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1983/08/24                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  177  |108.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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