RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 JANUARY 2006
      DOCKET NUMBER:  AR20050004502


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. William Powers                |     |Chairperson          |
|     |Mr. Thomas Ray                    |     |Member               |
|     |Mr. Randolp Fleming               |     |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, disability retirement or separation.

2.  The applicant states he was allowed to enlist in the Army after taking
a complete physical and in spite of a highly visible scar on his left knee.
 He states although he was within seconds of the required time for the two-
mile run, he was able to meet all other requirements.  He states, however,
that it was noted that his left knee, for which he had previously undergone
surgery, was being aggravated due to the physical requirements and that he
should never have been selected for jump school.

3.  The applicant states that medical personnel at Fort Jackson caught this
error and that when he requested a profile precluding him from running, it
was discovered that his left knee had slipped out of place again.  He
states he had not previously had any problems and maintains it is his
strong case, and his belief, that his knee was dislocated during a two-mile
run fitness test.  He states he was able to meet all physical fitness
requirements until the point his knee dislocated.

4.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 10 May 1991.  The application submitted in this case is
dated
25 February 2005.

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 limitations 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.  Records available to the Board indicate the applicant underwent a
physical examination, in preparation for his enlistment in the Army, on 19
November 1990. The examining physician noted the applicant had been granted
a waiver for being one pound underweight.  The physician also noted the
applicant had left knee surgery when his was 10 or 11.  The applicant was
found medically qualified for enlistment, but disqualified for airborne
training.  There were no other medical records available to the Board,
beyond the applicant's enlistment physical.

4.  The applicant enlisted in the Regular Army on 27 December 1990.  His
enlistment contract notes he was enlisting for training in the
administrative field, but not for airborne training.

5.  The applicant successfully completed basic combat training and was
undergoing advanced individual training in March 1991 when he was cleared
for reassignment to Germany.  There is no evidence indicating he had been
selected for airborne training as the applicant implied in his request to
the Board.

6.  In spite of being found qualified for reassignment to Germany, by April
1991 the applicant was apparently undergoing a trainee medical retention
board.  The basis for the board was not in records available to the Board.
The single document associated with the applicant's administrative
separation was dated
24 April 1991.  That document merely noted the applicant had requested
retention but his commander recommended separation.  The document also
noted that the applicant's medical condition did not support retention.

7.  On 10 May 1991 the applicant was released from active duty under the
provisions of Army Regulation 635-200, paragraph 5-11 for failing to meet
procurement medical standards.  He had 4 months and 14 days of active
Federal service at the time of his separation.

8.  Paragraph 5-11, of Army Regulation 635-200, provides for the separation
of enlisted 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 entering on active
duty.  Such conditions must be discovered during the first 6 months of
active duty and will result in an entrance physical standards board.
Medical proceedings, regardless of the date completed, must establish that
a medical condition was identified by an appropriate military medical
authority within 6 months of the Soldier’s initial entrance on active duty
and a determination made that the condition would have permanently or
temporarily disqualified the Soldier from entry into the military service
or entry on active duty had the condition been detected at that time.

9.  Army Regulation 635-40 states that Soldiers who are unfit by reason of
a physical disability, neither incurred nor aggravated during his period of
service, will be separated for physical disability without entitlement to
benefits.

10.  Army Regulation 635-40, paragraph B-10, provides that hereditary,
congenital, and other EPTS (existed prior to service) conditions frequently
become unfitting through natural progression and should not be assigned a
disability rating unless service aggravated complications are clearly
documented or unless a Soldier has been permitted to continue on active
duty after such a condition, known to be progressive, was diagnosed or
should have been diagnosed.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, the applicant’s separation
for failing to meet procurement medical fitness standards is presumed to
have been proper and accomplished in compliance with applicable
regulations.

2.  The applicant’s separation would have been based on the fact that a pre-
existing medical condition was identified which prevented him from
continuing his military service.  There is no reason to doubt the
applicant's contention that his knee condition served as the basis for his
separation.  The applicant would have been involved in his separation
processing and would have been able, at the time, to argue that his knee
condition was aggravated by his military service.  There is no evidence he
did so, and if he did, it would appear that medical officials concluded
otherwise.  However, he has presented no medical evidence which confirms
his knee condition was aggravated by his military service.

3.  The Army has an obligation to release individuals whose medical
conditions might further aggravate the condition and/or ultimately
jeopardize the health of the individual, if permitted to remain under the
rigors of a military environment.

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

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 May 1991; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
9 May 1994.  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

__WP ___  __TR___  ___RF  __  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.




                                  _____ William Powers________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004502                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060105                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]