IN THE CASE OF:	  
BOARD DATE:	  
DOCKET NUMBER:  AR20080003789 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his discharge be changed to honorable and the reason changed to, “for medical conditions.”

2.  The applicant states, in effect, that he was discharged because of a hernia that occurred during a five mile run competition shortly before graduation from AIT (advanced individual training).  He was discharged because of this hernia; so therefore, it was a medical reason.

3.  In support of his request, the applicant submitted a copy of his DD Form 214, Report of Separation from Active Duty; a copy of a form whose name and form number were omitted, dated 21 April 1977; a copy of a Standard Form (SF) 502, Clinical Record, Narrative Summary, dated 20 April 1977; a copy of a SF 89, Report of Medical Examination, dated 21 April 1977; a copy of a SF 88, Report of Medical History, dated 21 April 1977; a copy of an undated Form 22-1, Request/Decline Copy of NGB Form 22 (Report of Separation and Record of Service), Narrative Reason for Separation; a copy of Orders 131-78, Headquarters, US Army Training Center, Fort Benning, Georgia, dated 11 May 1977; a copy of Orders 109-19, Military Department of Tennessee, Office of the Adjutant General, National Guard Armory, Nashville, Tennessee, dated 8 June 1977; a copy of a NGB Form 55, Honorable Discharge Certificate, dated 6 June 1977; and a copy of two medical records prepared by the Jackson-Madison County General Hospital, dated 6 February 1987.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s service personnel records are not available for the Board’s review; however, the applicant provided sufficient documents, which includes a completed DD Form 214, which allows the Board to address the applicant’s request.

3.  The applicant’s service records show he enlisted in the Tennessee Army National Guard (TNARNG) on 7 December 1976.  He entered active duty for training on 7 January 1977.  The applicant successfully completed basic combat training at Fort Jackson, South Carolina.

4.  The evidence shows that on 21 April 1977, the applicant’s medical records went before a medical review board to determine his suitability for continuation on active duty for training.  After careful consideration of his clinical records, laboratory findings, health records, and medical examinations, the board found the applicant had been medically unfit for procurement.  The applicant had been diagnosed as having a large left varicocele.  In Item 20, of the form completed by the medical review board, it shows the applicant’s medical condition and/or physical defects had existed prior to service (EPTS).

5.  On 21 April 1977, the applicant underwent a separation physical examination. A Standard Form (SF) 89, Report of Medical Examination, was completed in connection with this physical examination.  The applicant was diagnosed to have a large left varicocele and was found to be not qualified for military duty.  He was given a physical profile of P-3 / U-1 / L-1 /H-1 / E-1 / S 1 / with a Physical Category Code of “C.”

6.  On 11 May 1977, Headquarters, US Army Training Center, Fort Benning, published Orders 131-78 releasing the applicant from active duty for training, discharging the applicant from the Reserve of the Army, and returning him to the TNARNG, with an effective date of 13 May 1977.

7.  The applicant was honorably released from active duty for training on 13 May 1977.  He was released from active duty for training while he was undergoing training at Fort Benning for award of the military occupational specialty 11B, Light Weapons Infantryman, in the rank and pay grade Private, E-1, for failure to meet established physical standards (no disability).  At the time of his release, the applicant had completed 4 months and 7 days net active service and a total of 5 months and 7 days for pay purposes.  The applicant was returned to the TNARNG after being released from active duty for training.

8.  Army Regulation 40-501, chapter 7, physical profiling, provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator 1 under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators 2 and 3 indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  Numerical designator 4 indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator 4 does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40.

9.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System.  The policies, responsibilities and procedures in this regulation provide for the retention or separation of a member determined to be unfit to perform the duties of his office, grade, rank or rating because of physical disability.

10.  Army Regulation 635-40, chapter 5, provides, in pertinent part, that if a Soldier is processed for failure to meet procurement fitness standards within the first six months of entry on active duty and the condition existed prior to the term of service, then the Soldier will be discharged in an entry level status with uncharacterized service.

11.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  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 this requirement.

2.  The evidence of record established that on 21 April 1977, the applicant’s medical records went before a medical review board to determine his suitability for continuation on active duty for training.  After careful consideration of his clinical records, laboratory findings, health records, and medical examinations, the board found the applicant medically unfit for procurement indicating this medical condition and/or physical defect had existed prior to his enlistment in the TNARNG and prior to his entry on active duty for training.

3.  On the date of his release from active duty for training, the applicant had completed 4 months and 7 days net active service and had only 5 months and 7 days total service for pay purposes.

4.  The applicable regulation, Army Regulation 635-40, required that since the applicant's condition was diagnosed within the first six months of his entry on active duty, and it was determined it had existed prior to his entry in service, he was required to be processed for discharge for failure to meet procurement fitness standards.  Soldiers discharged under these circumstances were normally issued a discharge with their service uncharacterized; however, in this case, the applicant's service was characterized as "honorable."

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ____x___  ___x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




       _   ____x___   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080003789





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ABCMR Record of Proceedings (cont)                                         AR20080003789



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