RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            09 DECEMBER 2003                  
	DOCKET NUMBER:   AR2003087577

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Ms. Eloise C. Prendergast		Member	

	The applicant and counsel if any, did not appear before the Board.

	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 1976 release from active duty be corrected to show that he was discharged or retired by reason of physical disability.  He also requests that a Reenlistment Eligibility (RE) code be established for him and entered on his 1976 separation document.

2.  The applicant states, in effect, that his left kidney was removed in 1976 and he was never referred to a PEB (Physical Evaluation Board).  He contends that he reported to the hospital because of kidney stones “not to have a kidney removed.”  The applicant sites provisions of Army Regulation 40-3, paragraph 
8-2a(2) and Army Regulation 40-501, paragraph 2-15f(1), which he contends indicates that absence of one kidney is grounds for referral to a PEB.

3.  The applicant provides copies of extras from the above cited regulations, extracts from his 1976 service medical records, and a copy of a 1998 summary of an operation on his right kidney.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on 
5 October 1976.  The application submitted in this case is dated 13 March 2003.  

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 limitation 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.  Records available to the Board indicate that the applicant enlisted in the military in May 1972 and entered active duty as a Regular Army Soldier for a period of 3 years on 15 September 1973.  In February 1974 the applicant was awarded a military specialty of 03C (Physical Activity Specialist) and performed duties in that specialty for the duration of his active duty contract.  He was promoted to pay grade E-4 September 1974.

4.  According to the extract from his service medical records, submitted by the applicant in support of his application, on 26 April 1976, while assigned to a signal battalion in Europe, the applicant was admitted to an Army hospital to undergo a left nephrectomy (removal of the left kidney).  The operation was scheduled after microscopic hematuira (blood in the urine) was discovered and upon further testing when it was found that the applicant had a “huge left hydronephrotic kidney [distention of the pelvis and calices of the kidney with urine as a result of obstruction of the ureter, with accompanying atrophy of the parenchyma of the organ] with multiple stones.”  

5.  The applicant underwent a “left nephrectomy” on 27 April 1976.  The medical summary notes that the post-operative course was uneventful and with no complications.  On 5 May 1976 he was placed on 9 days of convalescent leave and on 14 May 1976 he was discharged with a 30-day temporary profile.

6.  A performance evaluation report, rendered in August 1976 for the period October 1975 through August 1976, noted that the applicant had “performed his duties during this rating period in an outstanding manner.”  The report noted that the applicant had been performing duties in a position normally occupied by a noncommissioned officer of higher rank and supervised four gym assistants.  He was recommended for attendance at NCOES (Noncommissioned Officer Education System).  The applicant received a performance evaluation score of 125, the maximum allowable score for evaluation reports at that time.

7.  The applicant was released from active duty with an honorable characterization of service on 5 October 1976.  His final physical profile, issued on 5 October 1976, was 1-1-1-1-2-1.  The “2” profile was based on the applicant’s eyesight and had nothing to do with his kidney operation.  The applicant’s separation document does contain an RE-1 in item 10 (Reenlistment Code).  The copy of the separation document provided by the applicant does not contain that information.

8.  Following the applicant’s release from active duty, he enlisted in the Alabama Army National Guard and remained an active member of that organization.  In July 1995 he was notified that he had sufficient qualifying service for retired pay at age 60 but continued to serve in the National Guard until May 1996 when he was honorably discharged and assigned to the Retired Reserve.

9.  Performance evaluation reports rendered between 1988 and 1993 indicated that he routinely passed the annual physical fitness test (APFT).  In 1995 and 1996 he did not take the APFT because he had not completed his required physical screening process.

10.  In November 1998 the applicant was treated for an ureteropelvic junction stone in his right kidney.

11.  Army Regulation 40-3, paragraph 8-2a, which the applicant cited as the basis for his request that he should have been referred for disability processing, notes, in effect, that Soldiers who “do not meet the medical fitness standards in AR [Army Regulation] 40-501, chapter 3” will be referred to a PEB.  

12.  Chapter 3 of Army Regulation 40-501 establishes the medical fitness standards for “retention and separation, including retirement.”  It does not list absence of a kidney as a basis for automatic referral to a PEB.  It does note, however, that some conditions of the kidney “not responding to medical or surgical treatment” may be a basis for referral.

13.  In the applicant’s request he cited the provisions of paragraph 2-15f of Army Regulation 40-501 as evidence that he should have been referred to a PEB based on the absence of his kidney.  That provision of the regulation, however, pertains to the physical standards for “enlistment, appointment, and induction” and not for “retention and separation, including retirement.”  Chapter 2 does not apply to Soldiers who are enlisting or reenlisting in a Reserve Component within 6 months of being released from active duty.

14.  Army Regulation 635-40 states that 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a Soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation is evidence that the Soldier is fit.  This evidence of fitness may be overcome if it can be established that the Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.  

15.  Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his office, grade, rank or rating.

16.  Army Regulation 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite an impairment would be considered evidence of physical fitness.

DISCUSSION AND CONCLUSIONS:

1.  The evidence confirms that the applicant does have a RE-1, which is reflected on certain copies of his separation document.  A copy of the separation document containing the RE code will be provided to the applicant.

2.  The absence of the RE code on the copy of the separation document provided by the applicant to the Board was intended for use by the applicant to provide to potential employers who would not have had a need to see the applicant’s reenlistment code.

3.  The applicant incorrectly cited the provisions of Chapter 2, Army Regulation 40-501 to support his contention that he should have been referred to a PEB following the removal of his left kidney in 1976.  Because the applicant was already in a military status, the provisions of Chapter 3, Army Regulation 40-501 and not Chapter 2, applied to the applicant.

4.  The evidence indicates that the applicant continued to perform his military duties following his 1976 kidney operation until the date of his release from active duty in October 1976.  His August 1976 performance evaluation report commended the applicant for his duty performance.

5.  Although the applicant may have had his left kidney removed, there is no evidence that it impacted on his ability to perform his military duties and as such there was no basis for referral for disability processing.

6.  Records show the applicant should have discovered the error or injustice now under consideration on 5 October 1976; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 5 October 1979.  However, 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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__MDM  _  __RJW  _  __ECP __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not 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.  

		___Mark D. Manning_____
		        CHAIRPERSON

INDEX

CASE ID	AR2003087577	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031209	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.