BOARD DATE: 1 November 2016 DOCKET NUMBER: AR20150011504 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ __x______ __x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 1 November 2016 DOCKET NUMBER: AR20150011504 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 1 November 2016 DOCKET NUMBER: AR20150011504 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 medically discharged. 2. The applicant states his honorable discharge should have been a medical discharge. The Board should consider upgrading his status because at the time of his discharge it was for medical reasons. 3. The applicant provides: * service medical records * medical records dated 2009 and 2013 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 18 October 1976 for a period of 3 years. He completed his training and was awarded military occupational specialty 64C (motor transport operator). 3. On 1 August 1979, he underwent a separation physical examination and was found medically qualified for separation. 4. He provided a DA Form 3349 (Medical Condition – Physical Profile Record), dated 11 October 1979, showing he was issued a temporary physical profile rating of 3 under the lower extremities factor for a period of 14 days for: * back and left leg pain * status post-hemilaminectomy (surgical removal of lamina) and discectomy (surgical removal of herniated disc material), L5-S1, 29 August 1979 5. He provided a DA Form 3082 (Statement of Medical Condition), dated 25 October 1979, wherein he stated his medical condition had changed since his separation medical examination because his L5-S1 (lumbosacral joint) was removed from his back. 6. On 5 November 1979, he was honorably released from active duty by reason of completion of required service. 7. He was honorably discharged from the U.S. Army Reserve on 17 October 1982 upon completion of his military service obligation. 8. He also provided medical records, dated 2009 and 2013, showing he underwent back surgeries in June 2009 and April 2013. 9. In the processing of this case, an advisory opinion was obtained from the Army Review Boards Agency Senior Medical Advisor. The opinion stated: a. A review of the applicant's electronic medical records revealed only radiology studies (2005 and 2006) and an emergency room visit (2006). b. His Standard Form 88 (Report of Medical Examination), dated 1 August 1979, shows he was rated normal in the clinical evaluation section, he had an orthopedic appointment for back pain, his physical profile rating was 111111, and he was medically qualified for separation. c. His Standard Form 93 (Report of Medical History), dated 1 August 1979, notes "fair" condition, pain in leg when sitting, runs from back to knee, has orthopedic appointment that day, fracture of ankles bilateral casted well healed. d. A Brooke Army Medical Center discharge note, dated 15 August to 9 October 1979, notes hospitalization, myelography (x-ray with dye) after ineffective course of steroids, and electromyogram (test to measure muscle response) consistent with S1 radiculopathy (disease of the spinal nerve roots). On 29 August 1979, the medical record notes left hemilaminectomy, then 30 days of convalescent leave, with discharge diagnosis of herniated disc L5-S1 on the left. e. A DA Form 3082, dated 5 October 1979, notes his medical condition changed since his last separation examination on 3 August 1979. He had L5 and S1 removed from his back. f. His DA Form 3349, dated 11 October 1979, notes back and left leg pain status post hemilaminectomy and discectomy, L5-S1, on 29 August 1979 for 14 days. g. Medical documents, dated 30 June 2009 and 22 April 2013, show he underwent back surgeries. h. No Department of Veterans Affairs or other documentation was available for review. i. A review of the available documentation found no evidence of a medical disability or condition that would support a change to the character or reason for the applicant's discharge in this case. j. He met medical retention standards. His medical conditions were duly considered during medical separation processing. 10. A copy of the advisory opinion was forwarded to the applicant for comment and/or rebuttal. He did not respond. REFERENCES: 1. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 2, in effect at the time, provided for discharge or release from the Active Army upon termination of enlistment, period of induction, and other periods of active duty or active duty for training. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. It states the mere presence of an impairment does not, in 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. It states that disability compensation is not an entitlement acquired by reason of a 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 the 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 or retirement indicates that a Soldier is fit. 3. Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of disability incurred while entitled to basic pay. DISCUSSION: 1. The applicant contends he should have been medically discharged. 2. Contemporaneous medical documentation shows he was found medically qualified for separation and his medical conditions (back and leg pain) were duly considered during his medical separation processing. He met medical retention standards prior to his separation. 3. The evidence shows he was honorably released from active duty on 5 November 1979 for completion of required service. He continued to serve in the U.S. Army Reserve until he was honorably discharged on 17 October 1982 upon completion of his military service obligation. 4. There is no evidence of record, and he did not provide any evidence, showing he suffered from a medical condition that rendered him unable to perform his duties while serving on active duty. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011504 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011504 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2