IN THE CASE OF:
BOARD DATE: 29 January 2009
DOCKET NUMBER: AR20080015951
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, correction to his DD Form 214 (Report of Separation from Active Duty) to show a disability.
2. The applicant states, in effect, that his DD Form 214 reads no specific disability. His DD Form 214 reads "failure to meet established physical standards (no disability)."
3. The applicant provides no additional documentation in support of his 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 military records show he enlisted in the U.S. Army Reserve in the Delayed Entry Program (DEP) on 24 March 1977. On 15 August 1977 he was discharged from the DEP and enlisted in the Regular Army, in pay grade E-3, on 16 August 1977, for 3 years.
3. On 7 October 1977, the applicant was advised that a medical examination on 6 October 1977 revealed that he had a medical condition that would have disqualified him from entry into the military service had it been detected at that time. He was also advised that he could apply for separation from the military by reason of having been erroneously enlisted. He was further advised that the medical condition did not disqualify him from retention in the military service under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3. His records do not contain a copy of the medical examination.
4. On the same date, the applicant elected to make application for his separation from the military.
5. On 19 October 1977, the appropriate convening authority approved the applicant's separation under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), paragraph 5-9, by reason of failure to meet procurement medical fitness standards.
6. The applicant was honorably discharged from active duty, in pay grade E-3, on 25 October 1977, under the provisions of Army Regulation 635-200, paragraph 5-9 for failure to meet established physical standards (no disability). His signature is annotated on the DD Form 214.
7. Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. Paragraph 5-9 specifically provided 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.
DISCUSSION AND CONCLUSIONS:
1. In view of the circumstances in this case, the applicant is not entitled to a correction to his DD Form 214 to show a specific disability.
2. The evidence of record shows the applicant enlisted in the Army on 8 August 1977 and a medical condition was revealed on 6 October 1977 that would have disqualified him for entry into the military service. As such, he was separated from active duty in accordance with Army Regulation 635-200, paragraph 5-9, for failure to meet established physical standards (no disability). This was acknowledged by his signature on his DD Form 214. His discharge was in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.
3. The applicant's contention and his belief that his DD Form 214 should have stated otherwise is acknowledged; however, these are not sufficiently mitigating to warrant a change to his DD Form 214.
4. 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.
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) AR20080015951
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ABCMR Record of Proceedings (cont) AR20080015951
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