RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 June 2007
	DOCKET NUMBER:  AR20060017094 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Jerome L. Pionk

Member

Ms. Jeanette B. McPherson

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 item 11c (Reason and Authority), of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), be corrected to show the entry "Discharged due to Disabling Injury (HNP [herniated nucleus pulposis]) Received in Line of Duty" instead of the entry "Disch (discharge) Because of not Meeting Medical Fitness Standards at the time of Enl (enlistment)."

2.  The applicant states, in effect, that he did not have a herniated disc when he entered the service.  He was injured in a fall while the company was changing barracks.  He was sent to the base hospital in Fort Leonard Wood, Missouri, where he was admitted, diagnosed, and treated for HNP.  He was then ordered to be released from the service by the doctors because of HNP. 

3.  The applicant provides a copy of his DD Form 214, a copy of a medical opinion, and VA (Department of Veterans Affairs) rating decision, in support of his request.  

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 31 May 1972, the date of his discharge.  The application submitted in this case is dated 13 December 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 record shows he enlisted in the U. S. Army Reserve (USAR), Delayed Entry Program, on 28 February 1972.  He enlisted in the Regular Army on 9 March 1972.  He was scheduled to attend basic combat training (BCT) at Fort Leonard Wood, Missouri, and advanced individual training at Fort Jackson, South Carolina, in military occupational specialty (MOS), 71L, Administrative Specialist.  


4.  On 8 May 1972, a narrative summary was prepared.  The summary indicated that the applicant had previous episodes of back pain and that there was a history of injury to his back in 1970.  After he began BCT, he developed severe constant low back pain.  He was seen in the Ortho clinic and placed in the care of a physician.  He remained in the hospital for a period of 1 month with the presumptive diagnosis of HNP.  In spite of his physical limitations, he continued to have moderate to severe constant low back pain.  He was admitted again to the hospital because of a very well determined clinical picture of HNP.  The physician determined that he was unfit for retention and recommended the  applicant be medically discharged from the service.

5.  The applicant's records contain a copy of a Standard Form 88 (Report of Medical Examination), dated 10 May 1972.  The purpose of his examination was for a medical board.  He was diagnosed as having HNP and was qualified for retention but not qualified for procurement.  He was issued a 113111 physical profile.

6.  The applicant appeared before a MEB on 15 May 1972.  He was diagnosed as having HNP with chronic low back pain, which was unfitting under the provision of Army Regulation 40-501, paragraph 2-36g.  His condition was considered to be not in line of duty, believed to have originated in 1970, was not incidental to service, existed prior to service, and was not aggravated by active duty.  He was returned to duty for separation from the service under he provisions of Army Regulation 635-200, chapter 5, paragraph 5-9.  He was relieved of all basic combat training duties.  The applicant indicated that he agreed with the MEB's findings and that he did not desire to continue on active duty.  The findings and recommendations were approved on 23 May 1972.

7.  The applicant was discharged, on 31 May 1972, under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-9, because of not meeting medical fitness standards at the time of enlistment.  He had a total of 2 months and 22 days of creditable service. 

8.  Item 11c, of his DD Form 214, shows the entry, "SPN 375 Disch because of not meeting Medical Fitness Standards at time of Enl."  

9.  Table 1, Enlisted Separation Program Designator Chart, of Army Regulation 680-3-2, in effect at that time, establishes the proper SPN codes to assign to Soldiers separating from the Army.  This table confirms that the SPN of "375" is the appropriate code for individuals discharged for entrance medical fitness standards not met at time of enlistment.

10.  The applicant provided a copy of a letter from the Hillcrest Medical Group/Cleveland Family Practice, dated 24 July 2006, prepared by a Doctor of Osteopathy.  The physician reviewed the applicant's medical records and history to determine if his ongoing back pain was related to his prior military service.  He determined that his back pain and difficulty walking were the results of injuries occurred during his period of service from 3 March to 31 May 1972.  He continued to elaborate on the old and new injuries, that occurred before and after his discharge.  He concluded that the records did clearly show the finding of a new injury during the applicant's period of service, in a distinctly separate location from his pre-service injury.  Follow-up imaging with a modality not available at that time and his (MRI [Magnetic Resonance Imaging]) confirmed the diagnosis.

11.  The applicant provided a copy of a VA rating decision document, dated 8 November 2006, which stated that the applicant was granted a 20 percent service-connected physical disability rating for degenerative disc disease, lumbosacral spine, effective 28 July 2006.

12.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 5-9, in effect at that time, specifically provides for the discharge of personnel who did not meet the medical fitness standards.  It stated that personnel who did not meet the medical fitness standards for enlistment or induction would be discharged.  Commanders were authorized to order discharge of individuals who were not medically qualified under procurement medical fitness standards when accepted for induction or initial enlistment.  A medical board proceeding was required to establish that a medical condition permanently disqualified the individual for entry in the military service had it been detected at that time and did not disqualify the individual from retention in the military service under the provisions of Army Regulation 40-501.  Authority for discharge and SPN (Separation Program Number) 375 would be included in directives or orders directing the individual to report to the transfer authority.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was diagnosed as having HNP which existed prior to service, was qualified for retention but not qualified for procurement, and was issued a 113111 physical profile.  




2.  The applicant appeared before an MEB and his condition was considered to be, not in line of duty, originated in 1970, was not incidental to service, existed prior to service, and was not aggravated by active duty.  He was returned to duty for separation from the service, under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-9.  He agreed with the MEB's findings and did not desire to continue on active duty.  The findings and recommendations were approved.

3.  The applicant was discharged from the service, under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-9, because of not meeting medical fitness standards at the time of his enlistment.  His discharge was in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was issued a SPN of "375", as shown in item 11c, of his DD Form 214.

4.  The evidence shows the SPN applied to his DD Form 214 is the appropriate code for the discharge he received; therefore, he is not entitled to removal of his SPN of "375", which represents the narrative reason for his discharge of, "Because of not Meeting Medical Fitness Standards at time of Enl."

5.  The applicant has provided insufficient evidence that the SPN "375" and the accompanying remark, "Disch Because of not Meeting Medical Fitness Standards at time of Enl," were incorrect or unjust at the time he was discharged. 

6.  The medical opinion and VA Rating Decision were considered; however, this evidence in itself does not support a change to his SPN of "375" and the corresponding narrative reason for his discharge.  Therefore, item 11c, of his DD Form 214, is correct as currently constituted.  

7.  The applicant alleges that he did not have a herniated disc when he entered the service.  However, a review of his narrative summary, dated 8 May 1972, clearly shows that he had episodes of back pain and there was a history of injury to his back in 1970.  

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





9.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 31 May 1972; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 30 May 1975.  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

____A___  __JP____  _JBM___  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.




______James E. Anderholm___
          CHAIRPERSON




INDEX

CASE ID
AR20060017094
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070626
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19720531
DISCHARGE AUTHORITY
AR 635-200, chap 5, para 5-9
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110.0200
2.

3.

4.

5.

6.