BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20150018008 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: 4 May 2017 DOCKET NUMBER: AR20150018008 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: 4 May 2017 DOCKET NUMBER: AR20150018008 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 an upgrade of his undesirable discharge to general under honorable conditions or a medical discharge. 2. The applicant states: a. No physical examination or informal hearing was offered. b. He didn't know his discharge would affect his veterans benefits. c. He was blind in his left eye when he joined the Army, but they inducted him anyway. After 7 months, they told him he was being discharged for not having sight in both eyes. He thinks he should have been discharged honorably for a medical condition. 3. The applicant provides two applications. 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 underwent an enlistment physical examination on 28 April 1969 and he was not found qualified for Regular Army enlistment. He was assigned a physical profile rating of "3" under the eyes factor on the basis of bilateral ptosis (drooping or falling of the upper eyelid), crossing pupillary aperture in principal positions of gaze, interfering with vision. 3. On 6 November 1969, he underwent an ophthalmological evaluation for ptosis at Great Lakes Naval Hospital and was found acceptable for enlistment by the opthamologic consultant. His medical records were reviewed by the senior medical officer and he was found medically qualified for enlistment with a physical profile rating of "2" under the eyes factor on 15 November 1969. 4. He enlisted in the Regular Army on 3 December 1969 for a period of 3 years. 5. He was absent without leave from 5 June 1970 to 13 September 1971. 6. On 28 September 1971, he underwent a separation physical examination and was found medically qualified for separation. The accompanying report of medical history shows he recorded: "I am in good health." 7. On 7 October 1971, separation proceedings were initiated against him under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct) due to unauthorized absence in excess of 1 year. 8. On 8 October 1971, he consulted with counsel and waived his rights. He also acknowledged that he might encounter substantial prejudice in civilian life if he were issued a discharge under conditions other than honorable. He elected to submit a statement in his own behalf; however, this statement is not available for review. 9. On 19 October 1971, the separation authority approved the recommendation for discharge and directed the issuance of an Undesirable Discharge Certificate. 10. He was discharged under other than honorable conditions on 5 November 1971 under the provisions of Army Regulation 635-206. He completed 7 months and 14 days of creditable active service with 470 days of lost time. 11. There is no evidence showing he applied to the Army Discharge Review Board for upgrade of his discharge within that board's 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion). It provided for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities or action was taken against them which was tantamount to a finding of guilty for an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year. An undesirable discharge was normally considered appropriate. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic policy for the separation of enlisted personnel. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. The unfitness must be of such a degree that a Soldier is unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his or her employment on active duty. 4. 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. 5. 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 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): * P – physical capacity or stamina * U – upper extremities * L – lower extremities * H – hearing and ears * E – eyes * S – psychiatric 6. A physical profile rating of "1" under all factors indicates an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment. A physical profile rating of "2" under any or all factors indicates an individual possesses some medical condition or physical defect which may require some activity limitations. DISCUSSION: 1. The applicant contends he should have been medically discharged because he was blind in his left eye when he enlisted and was found medically acceptable, but he was later discharged for not having sight in both eyes. He also contends that no physical examination or informal hearing was offered. 2. The evidence of record shows he was assigned a physical profile rating of "2" under the eyes factor at the time of his enlistment, indicating he possessed some medical condition or physical defect which might require some activity limitations. 3. The evidence of record also shows he underwent a separation physical examination on 28 September 1971 and he was found qualified for separation. He was assigned a physical profile rating of "2" under the eyes factor at the time of his separation. Further, he reported he was in good health. There is no evidence showing he was medically unfit to perform his duties while serving on active duty. 4. He contends he didn't know an undesirable discharge would affect his veterans' benefits. 5. His brief record of service included 470 days of lost time. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case. Any questions he may have regarding veterans' benefits should be directed to the Department of Veterans Affairs. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018008 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018008 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2