RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           23 February 2005
      DOCKET NUMBER:  AR20040003031


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

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Hubert O. Fry                 |     |Chairperson          |
|     |Ms. Marla J. Troup                |     |Member               |
|     |Mr. Peter B. Fisher               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his administrative separation
with an uncharacterized description of service be changed to a medical
separation.

2.  The applicant states that his back condition should have shown up on
Army doctor's reports and x-rays.

3.  The applicant provides his DD Form 214 (Certificate of Release or
Discharge from Active Duty); a note To Whom It May Concern dated 27 April
1998; a letter dated 6 November 2003 from the Pain Treatment Center; a
letter dated             24 November 2003 from Ochsner Clinic Foundation; a
3-page supplemental claim form dated 3 April 1998; a continuation form
dated 1 April 1999; a              1 December 2003 letter from his Senator
to him; and a 5 December 2003 letter from his Member of Congress to his
mother.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 27 April 1995.  The application submitted in this case is dated
29 May 2004.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Regular Army on 24 January 1995.  He
completed basic training and was reassigned to Fort Jackson, SC on 31 March
1995 for advanced individual training.

4.  The applicant's medical evaluation board/physical evaluation board
proceedings are not available.  On 27 April 1995, he was discharged under
the provisions of Army Regulation 635-200, paragraph 5-11, with an
uncharacterized description of service, due to failure to meet procurement
medical fitness standards.

5.  The evidence provided by the applicant shows he has been diagnosed with
severe ankylosing spondylitis.

6.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Paragraph 5-11 sets the policy and
prescribes procedures for separating members who were not medically
qualified under procurement medical fitness standards when accepted for
enlistment or who became medically disqualified under these standards prior
to entry on active duty.  Medical proceedings, regardless of the date
completed, must establish that a medical condition was identified by
appropriate military medical authority within   6 months of the Soldier’s
initial entrance of active duty that would have permanently or temporarily
disqualified him or her for entry into the military service or entry on
active duty had it been detected at that time and does not disqualify him
or her for retention.  Unless the reason for separation requires a specific
characterization, a Soldier will be awarded an uncharacterized description
of service if in an entry-level status.  (For Regular Army Soldiers, entry-
level status is the first 180 days of continuous active duty.)

7.  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.  The unfitness is of such a degree that a soldier is
unable to perform the duties of his office, grade, rank or rating in such a
way as to reasonably fulfill the purposes of his employment on active duty.
 In pertinent part, it states that according to accepted medical
principles, certain abnormalities and residual conditions exist that, when
discovered, lead to the conclusion that they must have existed or have
started before the individual entered the military service.  Examples are
congenital malformations and hereditary conditions or similar conditions in
which medical authorities are in such consistent and universal agreement as
to their cause and time of origin that no additional confirmation is needed
to support the conclusion that they existed prior to military service.
Likewise, manifestation of lesions or symptoms of chronic disease from date
of entry on active military service (or so close to that date of entry that
the disease could not have started in so short a period) will be accepted
as proof that the disease existed prior to entrance into active military
service.

8.  The National Institutes of Health Internet site medlineplus.gov
describes ankylosing spondylitis (AS) as a rheumatic disease that causes
arthritis of the spine and sacroiliac joints.  It varies from intermittent
episodes of back pain that occur throughout life to a severe chronic
disease that attacks the spine and peripheral joints and results in severe
joint and back stiffness.  It states that AS  is a member of the family of
diseases that attack the spine called spondylarthropathies.  The cause is
not known, but all of the spondylarthropathies share a common genetic
marker in most affected individuals.  Delayed diagnosis is common because
symptoms are often attributed to more common back problems.

9.  Army Regulation 40-501 governs the medical fitness standards for
enlistment, retention, and separation.  Paragraph 2-38b states that
ankylosing spondylitis is a cause for rejection for enlistment.  Table 8-1
states that enlistment physical examinations require only a chest x-ray and
then only if clinically indicated.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's medical evaluation board/physical evaluation board
proceedings are not available so it cannot be determined what medical
condition was discovered that led to his separation.

2.  However, it appears the applicant is contending his condition was
ankylosing spondylitis.  It appears the preponderance of medical opinion
has determined that ankylosing spondylitis is a genetic condition.
Therefore, it appears he had that condition prior to his enlistment, even
if it had not manifested itself before that time, and he was properly
separated through administrative channels as not meeting procurement
medical fitness standards.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 27 April 1995; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         26 April 1998.  However, the applicant did not file
within the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__hof____  _mjt____  _pbf___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            __Hubert O. Fry_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040003031                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050223                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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