RECORD OF PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:            20 November 2003           
	DOCKET NUMBER:   AR2003090057

	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	
	Mrs. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn Langston		Chairperson	
	Ms. Linda D. Simmons		Member	
	Mr. Robert Duecaster		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 administrative separation be changed to a medical separation.

2.  The applicant states that his physical profile was changed without his knowledge in order to qualify him for separation at his expiration term of service (ETS).  His PULHES (physical profile serial system – P:  physical capacity or stamina; U:  upper extremities; L:  lower extremities; H:  hearing and ears;         E:  eyes; and S:  psychiatric) was 114121 when he took his ETS physical examination.  He indicated he had numerous medical conditions on his Standard Form (SF) 93 (Report of Medical History).  He was put through the bending, reaching, toe touching, and other moves while wearing his Transcutaneous Electric Nerve Stimulator (TENS).  He could have been paralyzed if he had ruptured his disc.  The medical examination service sent a consultation request to the Neurosurgery Clinic requesting clarification of his permanent profile for mechanical low back pain and low thoracic pain.  His doctor apparently knew that a medical review board was required the way the record read at that time.  

3.  The applicant further states that another doctor then said to give him a permanent low back profile and dismissed any thoracic back problems, knee problems, and thumb problems even though he was prescribed the TENS unit for permanent utilization and had documentation on the other disabilities.  He was then given a physical profile of 113111, which ended his military career even if he had not decided to get out when he could not pass a flight physical.  Only recently has the Department of Veterans Affairs (VA) upgraded him to 50 percent disabled.  He should have been given a medical review board.  A board would have found that he was medically disqualified for Russian linguist training due to his defective hearing.  He could not hear the tapes well enough to learn at their speed.  

4.  The applicant provides an SF Form 93 dated 6 March 1980; an SF Form      88 (Report of Medical Examination) dated 6 March 1980; a consult sheet dated   10 March 1980; a consult sheet dated 27 March 1980; a DA Form 3349 (Medical Condition – Physical Profile Record) dated 14 April 1980; a DA Form 1811 (Physical and Mental Status) dated 24 April 1980; a Social Security Statement dated 23 May 2002; a VA Form 22a (Appointment of Individual as Claimant's Representative); a DA Form 2173 (Statement of Medical Examination and Duty Status) dated 1 February 1978; a TENS Patient Instruction Manual; and a copy of his DA Form 2-1 (Personnel Qualification Record) last reviewed on 22 January 1980.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error or injustice which occurred on 10 June 1980.  The application submitted in this case is dated 18 April 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.  The applicant initially served in the Regular Army from 10 March 1969 through 2 December 1971 as a helicopter repairman.

4.  In 1973, the applicant requested a medical waiver to reenlist in the Regular Army.  He had been receiving a 30 percent VA disability.  He reenlisted on        21 December 1973.

5.  The applicant attended Russian language training in 1974.  A DLIWC Form 315 (Student Analysis) dated 15 October 1974 indicates the applicant had been recycled from a previous class where he had missed 104 classroom hours.  He continued to miss classes.  His interest and motivation were poorly manifested.  He continued to have vague non-specific ailments which prevented his study.  He would be having considerable medial treatment in the future.  He was dismissed from class for medical reasons.

6.  The applicant was apparently reclassified into military occupational specialty 91B (Medical Specialist) on 28 February 1975.  

7.  The applicant's Enlisted Evaluation Report (EER) for the period ending January 1976 shows he received a rating of "3" ("Exceeds or meets duty requirements") in the category of "Is physically fit, as required, for MOS/grade during combat.  (Physical condition)."  Rater comments indicated he demonstrated the potential to be an outstanding noncommissioned officer with the proper guidance and direction.

8.  The applicant was honorably discharged on 10 June 1976 for the purpose of immediately reenlisting on 11 June 1976 for 4 years.  

9.  The applicant was promoted to Specialist Five, E-5 on 1 February 1977.

10.  The applicant's EER for the period ending August 1977 shows he received a rating of "5" ("Ranks with very best") in the category of "Is physically fit, as required, for MOS/grade during combat.  (Physical condition)."  Rater comments indicated he was an outstanding flight medic.

11.  The applicant's EER for the period ending August 1978 shows he received a rating of "5" ("Ranks with very best") in the category of "Is physically fit, as required, for MOS/grade during combat.  (Physical condition)."  Rater comments indicated he was extremely knowledgeable and competent and demonstrated a great deal of potential and value to the Army.

12.  The applicant's EER for the period ending July 1979 shows he received a rating of "5" ("Ranks with very best") in the category of "Is physically fit, as required, for MOS/grade during combat.  (Physical condition)."  Rater comments indicated he demonstrated the ability to provide excellent comprehensive nursing care to critically ill patients.  Indorser comments indicated that he performed well within, and often above, the level of a 91B.

13.  The applicant's Senior EER for the period ending April 1980 shows he received a rating of "3" and "2" (from the rater and indorser, respectively) ("Exceeds or meets duty requirements") in the category of "Is physically fit, as required, for MOS/grade.  (Physical condition)."  Rater comments indicated he possessed some qualities of leadership but at present he lacked the personal initiative to utilize those qualities.  At times he conveyed negative ideas towards completion of the mission.  It was recommended he attend leadership building courses.  Indorser comments indicated that he was a capable individual who had motivation problems.

14.  The applicant's separation SF Form 93 indicated he had been rejected for enlistment in 1973 due to a VA disability rating of 30 percent on his lower back and right knee and that he received VA disability from 1971 through 1973 for a stretched right knee ligament and narrowing of the third lumbar "interspace."

15.  On 10 June 1980, the applicant was honorably discharged upon his ETS.

16.  The TENS Patient Instruction Manual provided by the applicant indicates that TENS can be used on a physician's prescription for relief of diagnosed chronic or acute pain.  It is a symptomatic treatment for pain, not a therapeutic treatment for the condition causing pain.

17.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 7, physical profiling, provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing and if reclassification action is warranted.  Four numerical designations (1 - 4) are used to reflect different levels of functional capacity in six factors (PULHES).  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness.  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  Numerical designator "4" indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator "4" does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40.  When a numerical designator "4" is used, there are significant limitations which must be fully described if such an individual is returned to duty.

18.  Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  It states that the mere presence of an 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 soldier reasonably may be expected to perform because of his or her office, grade, or rank.  A lack of special skills in demand or an inability to meet physical standards established for specialized duty such as flying does not, in itself, establish eligibility for disability separation or retirement.  

19.  Army Regulation 635-40 states that after a soldier has been enlisted, the soldier will not be declared physically unfit for military service because of disabilities known to exist at the time of the soldier's acceptance for military service that have remained essentially the same in degree since acceptance and have not interfered with the soldier's performance of effective military service.

20.  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.  At the time, when a soldier was being processed for separation or retirement for reasons other than physical disability continued performance of assigned duty commensurate with his or her rank or grade until the soldier was scheduled for separation or retirement created a presumption that a soldier was fit.  Application of the rule did not mandate a finding of fit.  The presumption was 

rebuttable and was overcome when the preponderance of evidence established the soldier was physically unable to perform adequately the duties of his or her office, grade or rank.

21.  Title 38, U. S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant reenlisted in the Regular Army in December 1973 with known lower back and knee disabilities.

2.  The evidence of record shows the applicant was sufficiently fit to reenlist again in 1976 and to be promoted to Specialist Five in 1977.  There is no indication he was ever unable to perform his military duties.  All his available EERs show that he was physically fit and all rater comments indicated he was capable of performing his duties.  There is no evidence to show that he was medically unfit to perform his military duties or that the presumption of fitness rule had been overcome.

3.  Records show the applicant should have discovered the error or injustice now under consideration on 10 June 1980; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 10 June 1983.  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

__jl____  __lds___     __rd______  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.  

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2003090057	
SUFFIX		
RECON		
DATE BOARDED	20031120	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.