IN THE CASE OF:
BOARD DATE:
DOCKET NUMBER: AR20080006642
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 her narrative reason for separation be changed.
2. The applicant states, in effect, that if she had a pre-existing medical condition, she would have not been able to enlist in the military. The applicant also states in effect, that after her discharge from the US Army she applied for benefits and tried to enlist in the US Air Force but was denied entry.
3. The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of this application.
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 applicants 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 applicants 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 record shows that she enlisted in the United States Army Reserve (USAR) on 6 January 1984 and entered active duty for training on
6 September 1984. She did not complete advanced individual training (AIT) and therefore was not awarded a military occupational specialty (MOS). The highest rank she attained while serving on active duty was private/pay grade E-1.
3. The applicants record contain MILPER message 241505Z Aug[ust] [19]84, subject: Enl Dsabl Sep [Enlisted Disability Separation], which states to issue orders discharging the applicant from the USAR in accordance with Army Regulation 635-40, paragraph 4-24E(3).
4. Item 28 (Narrative Reason for Separation) of the applicants DD Form 214, shows that she was discharged from active duty effective 6 September 1984, in pay grade E-1, under the provisions of Army Regulation 635-40, chapter 5, by reason of physical disability prior to entry on active duty - medical board. She was assigned separation code KFN.
5. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the policy for assignment of SPD codes and the corresponding narrative reason for separation based on the regulatory authority for separation or discharge. This regulation provides the SPD for Army Regulation 635-40, chapter 5 as KFN, physical disability prior to entry on active duty.
6. Army Regulation 635-40 sets forth the basic authority for the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. Paragraph 4-24e (3) provides for separation for physical disability with severance pay provided the applicant served 6 months or more of active federal service.
7. DoDI 1338.38, paragraph E4 (Conditions Presumed to be Pre-Existing) specifies that the occurrence of disease as described in paragraph E.4.a and E.6. shall be presumed to have existed prior to entry into military service.
E.4.a. specifies that signs or symptoms of chronic disease identified so soon after the day of entry on military service (usually within 180 days) that the disease could not have been originated in that short a period will be accepted as proof that the disease manifested prior to entrance into active military service.
E.6. (Treatment of Pre-Existing Conditions) specifies that generally recognized risks associated with treating pre-existing conditions shall not be considered service aggravation.
8. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that the narrative reason for her separation from the US Army should be changed to show that she did not have a pre-existing medical condition was carefully considered and found to be without merit.
2. Although the applicants medical condition did not prevent her from enlisting in the US Army, it is presumed that her medical condition existed prior to entry into military service because the signs or symptoms of the condition manifested themselves within 180 days of her entry onto active military service. Therefore, in view of the available evidence she is not entitled to correction of records to show that she did not have a pre-existing condition.
3. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.
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) AR20080006642
4
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