IN THE CASE OF:	

		BOARD DATE:	  25 November 2008

		DOCKET NUMBER:  AR20080013251 


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, a medical discharge and correction to his discharge date. 

2.  The applicant states, in effect, that he did not want to be discharged.  He also states, in effect, that his discharge date is in error and should be 12 May 1988.  He further states that he was enlisted with flat fleet and during basic training, the military boots caused his feet to swell.  He was still able to fulfill his duties; however due to his foot problems, he was medically discharged.  He did not ask to be discharged with no benefits.

3.  In support of his application, the applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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.  On 28 January 1988, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 8 years.  On 29 February 1988, he was discharged from the DEP and enlisted in the Regular Army on 1 March 1998, for 3 years.  

3.  On an unspecified date, the applicant was seen at the Moncrief Army Community Hospital, Fort Jackson, South Carolina, for complaints of pain in both feet with running and marching.  He was diagnosed with hallux valgus (bunion) deformity, bilateral, existing prior to entrance into the service (EPTS).  

4.  On 30 March 1988, during his 3rd week of basic combat training, the applicant underwent an Entrance Physical Standards Board (EPSBD) for hallux valgus (bunion) deformity of both feet.  The board proceedings show he had complained that his feet hurt when he wore his boots.  The x-ray report of both feet revealed hallux valgus.  He was diagnosed with hallux valgus deformity, bilateral, EPTS.  The EPSBD recommended he be separated from the Army for failure to meet medical procurement standards in accordance with Army Regulation 40-501, Chapter 2, paragraph 2-10b(7).  The applicant concurred with the EPSBD's findings and requested discharge from the Army without delay.

5.  On 30 March 1988, the unit commander recommended the applicant be separated from the Army.  Accordingly, the separation authority approved the applicant's discharge and directed he be separated from the Army.

6.  On 12 April 1988, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 5-11, by reason of failure to meet procurement medical fitness standards – no disability.  He had completed 1 month and 12 days of total active service.  

7.  Army Regulation 635-200 (Enlisted Personnel Separations) provides the basic authority for the separation of enlisted personnel.  Paragraph 5-11 specifically provides that Soldiers who are not medically qualified under procurement medical fitness standards, when accepted for enlistment, or who became medically disqualified under these standards prior to entry on active duty or active duty training or initial entry training will be separated.  A medical proceeding, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within 6 months of the Soldier’s initial entrance on active duty, that the condition would have permanently or temporarily disqualified the Soldier for entry into the military

service had it been detected at that time, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501, Chapter 3.  The characterization of service for Soldiers separated under this provision of regulation will normally be honorable, but will be uncharacterized if the Soldier is in an entry-level status.  Army regulation states that a Soldier is in an entry-level status if the Soldier has not completed more than 180 days of creditable continuous active duty prior to the initiation of separation action.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, United States Code (USC) , Chapter 61, (10 USC 61) and Department of Defense Directive 1332.18.  It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  Soldiers are referred into the PDES system when they no longer meet medical retention standards in accordance with Army Regulation 40-501, Chapter 3. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant underwent an EPSBD and was diagnosed with hallux valgus deformity, bilateral, within 3 weeks of his voluntary enlistment.  The EPSBD determined that the applicant's condition existed prior to his entry in the service and that had the condition been detected at the time of his enlistment, it would have disqualified the Soldier for entry into the military service.  The x-ray evidence substantiated his EPTS condition.  

2.  The applicant concurred with the findings of the EPSBD and requested immediate discharge from the Army.  Since the applicant's medical condition was not medically unfitting for retention at the time in accordance with Army Regulation 40-501, there was no basis for medical retirement or separation.

3.  The disposition of Soldiers who are found not to meet the Army's procurement medical fitness standards is through administrative separation and not through the Army's PDES.  As such, the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  No evidence of arbitrary or capricious actions by the command was found.  It appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  The applicant is also not entitled to correction to his discharge date.  The evidence shows the applicant enlisted in the Regular Army on 1 March 1988 and was discharged on 12 April 1988.  The applicant has provided no evidence to support his contention that his discharge date is incorrect and should reflect another date.  

5.  Given the above, there is no basis upon which to grant the applicant's requests.  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 did not submit any evidence that would satisfy this requirement.  

6.  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)                                         AR20080013251



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ABCMR Record of Proceedings (cont)                                         AR20080013251


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