IN THE CASE OF: BOARD DATE: 21 January 2009 DOCKET NUMBER: AR20080015946 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 a medical discharge. 2. The applicant states, in effect, that he was found fit all through basic training and that he went to advanced individual training (AIT). He contends that since he injured his right knee while in AIT he should have received a medical discharge. He also states that another individual had the same injury and received a medical discharge. 3. The applicant provides no additional documentary evidence in support of his application. 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 20 June 1996 for a period of 5 years. 3. On 5 September 1996, an Entrance Physical Standards Board (EPSBD) Proceedings diagnosed the applicant as having right knee pain, existed prior to service (EPTS). The EPSBD found the applicant medically unfit for enlistment in accordance with current medical fitness standards and determined that his knee injury existed prior to service. The EPSBD recommended that the applicant be separated from the Army under the provisions of Army Regulation 635-200, paragraph 5-11, for a condition noted within the first 180 days of active duty that existed prior to service and is not service aggravated. On 6 September 1996, in his own hand, the applicant concurred with the proceedings and requested to be discharged from the U.S. Army without delay. The unit commander recommended discharge and the discharge authority directed that the applicant be discharged from the Army. 4. The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was discharged on 17 September 1996 with an uncharacterized discharge under the provisions of Army Regulation 635-200, paragraph 5-11, for failure to meet procurement medical fitness standards. He had served a total of 2 months and 28 days of creditable active service. 5. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 5-11 specifically provides that Soldiers who were not medically qualified under procurement medical fitness standards, when accepted for enlistment, or who became medically disqualified under these standards prior to entrance on active duty or active duty training or initial entry training will be separated. A medical proceeding, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within six months of the Soldier’s initial entrance on active duty, that the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at that time, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501, chapter 3. The characterization of service for Soldiers separated under this provision of regulation will normally be honorable, but will be uncharacterized if the Soldier is in an entry level status. 6. Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. Under the laws governing the Army Physical Disability Evaluation system, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits. The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training. 7. 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 office, rank, grade or rating because of disability incurred while entitled to basic pay. DISCUSSION AND CONCLUSIONS: The applicant's contentions were noted. However, in 1996 an EPSBD found the applicant medically unfit for enlistment in accordance with current medical fitness standards and determined that his right knee pain existed prior to his entry into military service. The applicant concurred with these proceedings and requested to be discharged from the Army without delay. Therefore, there is no basis for granting the applicant’s request for a medical discharge. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ____x____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 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. _________xxx_____________ 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. ABCMR Record of Proceedings (cont) AR20080015946 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080015946 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1