RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	 8 February 2007 
	DOCKET NUMBER:  AR20060009481 


	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



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 that his uncharacterized discharge be changed to a medical discharge. 

2.  The applicant states that the DA Form 4707 (Entrance Physical Standards Board (EPSB) Proceedings) explains that he was discharged because of the medical condition of Spina-bifida.  His medical records are supposed to be at the Department of Veterans Administration Regional Officer in Cleveland, Ohio.  He also states that he applied for a job and they would not consider him because his discharge was uncharacterized.  He was unaware of this until then.  He thought it was a medical discharge.

3.  The applicant provides a copy of his DA Form 4707 in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 3 February 1983, the date of his separation from active duty.  The application submitted in this case is dated 6 June 2006.

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.  The applicant's military records show he enlisted in the United States Army, in pay grade E-1, on 8 December 1982, for 4 years.  

4.  On 27 January 1983, an EPSB convened and considered the applicant's history of low back pain for two years prior to entry in service and noted he did not seek medical attention because of inability to pay.  The EPSB found the applicant had low back pain with physical activity and prolonged standing.  Physical examination revealed lumbosacral tenderness, good trunk motion, negative straight leg raising.  Laboratory and X-Ray data revealed Spina-bifida, lumbar vertebra 5, sacralization, lumbar vertebrae, bilateral.  The EPSB's diagnosis was Spina-bifida occulta, sacralization, lumbar spine, bilateral, with mechanical low back pain.  The EPSB found the applicant medically unfit for enlistment in accordance with Army Regulation 40-501, paragraph 2-36c(5).
5.  He was discharged from active duty, in pay grade E-1, on 3 February 1983, under the provisions of Army Regulation 635-200, paragraph 5-11, “Did not meet procurement medical fitness standards – no disability.”  His character of service was "Uncharacterized."  His signature is annotated on the DD Form 214.

6.  Army Regulation 40-501, governs the medical fitness standards for enlistment, induction, and appointment.  Chapter 2 specifies the standards to ensure that individual are medically qualified.  Paragraph 2-36c prescribes the medical condition and physical defect of deviation of curvature of spine from normal alignment, structure, or function as a cause for rejection for enlistment.

7.  Army Regulation 635-200, sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-11 establishes policy and prescribes procedures for separating members who did not meet procurement medical fitness standards. It specifies that Soldiers who are not medically qualified under procurement medical fitness standards when accepted for enlistment may be separated.  Such conditions must be discovered during the first 6 months of active duty.  Such findings will result in an EPSB.  This board must also be convened within the Soldier's first 6 months of active duty.  A Soldier with existing prior to service conditions do not qualify for retention.  Characterization of service of uncharacterized is awarded if a Soldier is in an entry-level status.  

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to a medical discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  The applicant enlisted on 8 December 1982 and his medical condition was discovered during the first 6 months of active duty.  The evidence shows he was found not medically qualified under procurement medical fitness standards by an EPSB on 27 January 1983.  As such, he was separated from active duty.  In accordance with pertinent regulations, his character of service was characterized as, "Uncharacterized."  This was acknowledged by his signature on his DD Form 214.

3.  The applicant's contentions and his belief that he should have been medically discharged are acknowledged but these are not sufficiently mitigating to warrant a change to his character of service.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 3 February 1983, the date of his separation from active duty; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 2 February 1986.  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

___RDG_  __JCR___  _DKH___  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.




      _____ __
                CHAIRPERSON




INDEX

CASE ID
AR20060009481
SUFFIX

RECON

DATE BOARDED
20070208
TYPE OF DISCHARGE
UNCHARACTERIZED
DATE OF DISCHARGE
19830203
DISCHARGE AUTHORITY
AR635-200, Para 5-11
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110.00
2.

3.

4.

5.

6.


ABCMR Record of Proceedings (cont)                                         AR20060009481


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508