IN THE CASE OF:
BOARD DATE: 10 February 2009
DOCKET NUMBER: AR20080017544
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 for failure to meet procurement medical fitness standards be corrected to show he was discharged due to a physical disability.
2. The applicant states that he was discharged for a medical reason that did not exist prior to entering the Army. He further states that he needs medical treatment for an injury he received while serving in the Army.
3. The applicant provides no additional documentary evidence 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 3Â 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 records show he enlisted in the Regular Army on
19 January 2000. On 8 June 2000, after completion of basic combat training, the applicant was given an uncharacterized separation because he did not meet procurement medical fitness standards under the provisions of Army Regulation 635-200, paragraph 5-11. He completed 4 months and 20 days of active duty service. The highest rank he attained while serving on active duty was private/pay grade E-1.
3. The applicant's separation packet was not contained in his military records.
4. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. Paragraph 5-11 specifically provides that Soldiers who were not medically qualified under procurement medical fitness standards, when accepted for enlistment, or who became medically disqualified under these standards prior to entrance on active duty or active duty training for initial entry training will be separated. Medical examinations are required for Soldiers being processed for separation under this chapter. A medical proceeding, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within six months of the Soldier's initial entrance on active duty, which would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at that time. 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. The glossary of this regulation defines entry level status as the first 180 days of continuous active duty.
5. Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEB). Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.
DISCUSSION AND CONCLUSIONS:
1. While the applicant's separation packet is not available for review, in order to be separated for failure to meet procurement medical fitness standards, a Soldier must be determined to meet medical retention standards.
2. Since the applicant was determined to meet medical retention standards, he could not have been referred to an MEB. Without an MEB, he could not be referred to a PEB. Without a PEB, he could not have been separated for physical disability.
3. While the applicant's need for medical attention is understandable, the ABCMR does not correct properly constituted military records to establish entitlement to benefits.
4. 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) AR20080017544
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ABCMR Record of Proceedings (cont) AR20080017544
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