APPLICANT REQUESTS:  That he be reinstated on active duty and that he be given pay for the period of time between his discharge and his reinstatement.

APPLICANT STATES:  That he had been initially determined to be medically disqualified for enlistment due to scoliosis (curvature of the back) and due to the varicocele (a varicose condition of the veins in the scrotum) of his spermatic cord.  In order to enlist, he had the varicocele condition surgically repaired and submitted treatment records for his scoliosis.  Those records showed that his scoliosis had never impeded his physical activities.  He was granted a waiver for his medical conditions based on the surgical repair of his varicocele and the civilian medical records pertaining to his scoliosis.  He then enlisted, completed rigorous initial entry training, and consistently achieved high scores on his Army Physical Fitness Tests.  During all that time he had only gone to sick call for his scoliosis a couple of times for muscle relaxers, which helped him sleep.  When his unit was alerted that it was deploying during Operation Desert Shield, the fact that he had scoliosis was noted.  He was then told that he should never have been enlisted with that condition, was placed on physical profile limitations, and he was deleted from his unit’s deployment orders.  He contends that he never saw a DA Form 4707, Entrance Physical Standards Board (EPSBD) Proceedings, and, therefore, was discharged without being given the right to request retention on active duty.  He contends that he was unjustly discharged for a medical condition which was noted prior to his enlistment, for which he was granted a waiver, and which never limited his ability to perform physical activities.

In support of his application he submits a complete copy of his medical records.  This copy does not contain a DA Form 4707.

COUNSEL CONTENDS:  Counsel reiterates the applicant’s synopsis and his contention that he was never afforded the rights contained on a DA Form 4707.  Counsel expands that the Army erred when it discharged the applicant under the provisions of Army Regulation 635-200, paragraph 5-11, as this authority applies only to those soldiers who are determined within the first 120 days of active duty to have a medical condition which was undetected at the time of enlistment, and who are discharged within 180 days of entry on active duty.
EVIDENCE OF RECORD:  The applicant's military personnel and medical records show:

The applicant enlisted in the USAR Delayed Entry Program on 24 August 1989.  In conjunction with that enlistment he had received a waiver for scoliosis and varicocele.  He had the varicocele surgically repaired and had submitted documentation from civilian physicians attesting that his scoliosis did not hinder his physical activities.

On 2 October 1989 he enlisted into the Regular Army for 6 years, was awarded the military occupational specialty of aircraft structural repairer, and was promoted to pay grade 
E-2.

The applicant had complained of pain in his back on 8 and 26 January and on 5 February 1990, was diagnosed as having scoliosis, and was returned to duty without physical limitations.

When the applicant was being processed for overseas replacement in conjunction with Operation Desert Shield, he listed on his SF 93, Report of Medical History, that he suffered from recurrent back pain.  Based on that entry, he was scheduled for an orthopedic evaluation.

He was then given a physical profile which limited him to no mandatory physical training, no standing for longer than 30 minutes, and no running, crawling, marching or lifting over 15 pounds.

On 12 December 1990 the applicant was the subject of an EPSBD.  In conjunction with the EPSBD a DA Form 4707 was completed.  In the section which contains the history of his illness it is listed that the applicant “states [he] experiences pain when running, crawling, marching and exercising and great discomfort when standing for longer than 30 minutes.”  The EPSBD determined that the applicant did not meet the medical fitness standards for enlistment and recommended that he be expeditiously discharged in accordance with Army Regulation 635-200, paragraph 5-11.  On the back of the DA Form 4707 the applicant marked the block which states “I concur with these proceedings and request to be discharged from the US Army without delay.”  The applicant signed the section containing that selection on 20 December 1990.
The EPSBD’s recommendation was approved by the appropriate authority and the applicant was honorably discharged on 10 January 1991 by reason of not meeting procurement medical fitness standards, no disability, in accordance with Army Regulation 635-200, paragraph 5-11.  He had 1 year, 3 months and 9 days of active duty.

Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel from active duty.  Paragraph 5-11 provides for the separation of those individuals who are determined to not be qualified under procurement medical standards for conditions which are identified within the first six months of entry on active duty.  Although a soldier in such circumstance has a right to request retention, an individual has no right to be retained.  The retention or separation decision is within the cognizance of the appropriate discharge authority.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The applicant’s contention that he was not afforded the options contained on a DA Form 4707 is untrue.  Although the copy of medical records he submitted with his application did not contain that form, that form was contained in the military medical records obtained by the Board from the Veterans Administration (COPY ATTACHED).  In addition, contrary to the applicant’s contention that he never saw a DA Form 4707 completed on him and was never afforded the rights contained on that form, not only was he given this form to select an option, he chose the option of immediate discharge as evidenced by a check mark and his signature.

2.  The applicant’s counsel’s contention that to be discharged under Army Regulation 635-200, paragraph 5-11, an individual must be identified as having an unfitting condition within 120 days of entry on active duty and discharged within 180 days is also untrue.  The regulation in effect at the time gives the Army 180 days to identify a disqualifying condition and no time limit to affect the discharge.  The Army met the requirement to identify the applicant’s unfitting condition within 180 days both prior to his enlistment, as evidenced by his being required to submit an application for a waiver of his scoliosis, and when he was diagnosed as having scoliosis in January and February of 1990.

3.  The applicant’s contention that his scoliosis did not hinder his physical activities prior to his enlistment or while he was undergoing his initial entry training is supported by the evidence of record.  He did not appear to have any physical limitations due to his scoliosis until he was notified that he was being processed for overseas replacement in support of Operation Desert Shield.  Only then did he report that he had experienced pain when running, crawling, marching and exercising and had experienced great discomfort when standing for longer than 30 minutes.  

4.  In view of the preceding there is no basis for granting the applicant’s request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

                       GRANT          

                       GRANT FORMAL HEARING

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director