MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 28 August 2003
         DOCKET NUMBER: AR2003085557

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Thomas Lanyi		Member
Mr. Harry B. Oberg		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that his uncharacterized discharge be changed to a medical discharge.

APPLICANT STATES: In effect, that he should have been given a medical discharge instead of being discharged for failure to meet procurement medical fitness standards. He contends that he injured his right shoulder during basic training; however, the examining Army doctor said there was no acute injury to his shoulder and that his condition existed prior to service (EPTS). He points out that this condition was not disqualifying on entry and that it was aggravated by service. He also contends that he concurred with the Entrance Physical Standards Board (EPSBD) Proceedings because he was threatened with discharge for fraudulent enlistment. He further states that since his discharge three separate orthopedic surgeons have examined his shoulder and determined that there was in fact an acute injury which he suffered during training. In support of his application, he submits two letters, dated 17 January 2003 and
14 December 2001, from a Member of Congress; a letter of explanation, dated 14 January 2003; a letter, dated 30 August 2003, from the Army Board for Correction of Military Records; two undated attachments; a letter, dated
29 November 2001, from a recruiter; an undated letter to a Member of Congress; a letter, dated 11 December 2001, from his physician; a letter, dated 23 January 2002; a DD Form 214 (Certificate of Release or Discharge from Active Duty); and numerous service medical records.

EVIDENCE OF RECORD: The applicant's military records show:

The applicant enlisted in the U.S. Army Reserve on 18 July 2001 under the delayed entry program. He entered active duty on 17 September 2001.

The applicant provided a copy of his EPSBD Proceedings, dated 25 October 2001, which show he was diagnosed with congenital shoulder laxity. The EPSBD indicates that during the second week of basic training the applicant was identified as having an EPTS condition (demonstrated ability to sublux [partial dislocation] his right shoulder without pain at will). The EPSBD found the applicant medically unfit for enlistment in accordance with current medical fitness standards (Army Regulation 40-501, paragraph 2-11d), determined that his shoulder condition existed prior to service, and determined that he met retention standards under the provisions of Army Regulation 40-501, chapter 3. The EPSBD recommended that the applicant be separated under the provisions of Army Regulation 635-200, paragraph 5-11. On 15 November 2001, 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.

The applicant's DD Form 214 shows that he was discharged on 11 December 2001 under the provisions of Army Regulation 635-200, paragraph 5-11, for failure to meet procurement medical fitness standards. His character of service was uncharacterized. He had served 2 months and 25 days of creditable service.

Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. Paragraph 5-11 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, active duty for 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 has not completed more than 180 days of creditable continuous active duty prior to the initiation of separation action.

Army Regulation 40-501 (Standards of Medical Fitness), chapter 2, provides the physical standards for enlistment, appointment, and induction. Dislocation, old, unreduced; substantiated history of recurrent dislocations of major joints; and instability of a major joint are shown as causes for rejection in paragraph 2-11d.

Army Regulation 40-501, chapter 3, as amended, provides the standards for medical fitness for retention and separation, including retirement. Soldiers with medical conditions listed in this chapter should be referred for disability processing.

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

1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

2. The Board noted the applicant's contention that he injured his right shoulder during basic training. However, the EPSBD indicates that during the applicant's second week of basic training he was identified as having an EPTS condition (demonstrated ability to sublux right shoulder without pain at will). The EPSBD also states that there was no acute injury.

3. The Board considered the applicant's contention that he concurred with the EPSBD Proceedings because he was threatened with discharge for fraudulent enlistment. However, there is no evidence of record available to the Board, and the applicant has provided no evidence, to support this contention.

4. The Board considered the applicant's contention that he should have been given a medical discharge instead of being discharged for failure to meet procurement medical fitness standards. However, an EPSBD found the applicant medically unfit for enlistment in accordance with current medical fitness standards and determined that his shoulder condition existed prior to his entry into military service. The applicant concurred with these proceedings and requested to be discharged from the Army without delay. Accordingly, the applicant was separated from active duty for failure to meet procurement medical fitness standards, not as a result of a medical condition.

5. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. The type discharge directed and the reasons for separation are appropriate considering all the facts of the case.

6. In view of the foregoing, 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

AAO____ TL_____ HBO_____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2003085557
SUFFIX
RECON
DATE BOARDED	20030828
TYPE OF DISCHARGE	UNCHAR
DATE OF DISCHARGE	20011211
DISCHARGE AUTHORITY	AR 635-200 Paragraph 5-11
DISCHARGE REASON	Failure to meet procurement medical fitness standards
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.0000
2.
3.
4.
5.
6.