IN THE CASE OF:	  

		BOARD DATE:	        7 April 2009

		DOCKET NUMBER:  AR20080019418 


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 of block 18 (Remarks) and block 26 (Separation Code) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the specific medical reason for his discharge.

2.  The applicant states, in effect, his records do not specifically state the reason for his discharge.  He argues that he was discharged for a partial tear to the Achilles tendon on his right foot because it was not healing fast enough to meet procurement medical fitness standards while he was attending advanced individual training.  He continues that his current separation code is a generic code which means he was separated for medical reasons but it does not state what kind of medical separation.  He concludes that he is trying to reenlist into the Army National Guard and he would like his separation code to change or that a description of the partial tear of his Achilles tendon be entered in block 18 of his DD Form 214.

3.  The applicant provides a DD Form 214; a memorandum to the applicant's commander from the Physical Evaluation Board Liaison Officer (PEBLO), Reynolds Army Community Hospital, Fort Sill, Oklahoma, dated 19 August 2002, subject: EPTS (Existed Prior to Service) Medical Board Proceeding Pending UP (under the provisions of) Para(graph) 5-11, AR (Army Regulation) 635-200 [Personnel Separations - Active Duty Enlisted Administrative Separations]; and pages 2 and 3 of a DD Form 2808 (Report of Medical Examination) 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 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 enlisted in the Regular Army on 22 May 2002 and was separated on 6 September 2002 under the provisions of Army Regulation 
635-200, paragraph 5-11, for failure to meet procurement medical fitness standards.  He had completed 3 months and 15 days of creditable active service.

3.  Block 26 of the applicant's DD Form 214 shows the entry "JFW" and block 
28 (Narrative Reason for Separation) shows the entry "Failure to Meet Procurement Medical Fitness Standards."

4.  The applicant provided a memorandum from the Fort Sill Army Community Hospital which shows he was being processed for separation due to a medical condition.

5.  The applicant also provided pages 2 and 3 of a DD Form 2808; however, this form is incomplete.

6.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) 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 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 six 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.

7.  Army Regulation 635-5 (Personnel Separations – Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  In pertinent part, it states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.

8.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for 
the separation of members from active military service, and the separation 
program designators to be used for these stated reasons.  The regulation states the reason for discharge based on separation code "JFW" is "Failed Medical/Physical/Procurement Standards" and the regulatory authority is Army Regulation 635-200, paragraph 5-11.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention has been carefully reviewed and found to be without merit.

2.  It is noted the applicant is requesting that the separation code be changed or that a description of his injury be entered in block 18 of his DD Form 214 in order to show a specific medical reason for his discharge.  However, the regulation in effect at the time shows that the proper separation code was "JFW" and the narrative reason for separation of "Failure to Meet Procurement Medical Fitness Standards" is correct as currently constituted.  There are no provisions, then and now, to explain a Soldier's reason for separation on the DD Form 214, other than the required entry in block 26.  Therefore, there is no basis for granting the applicant's requested relief. 

3.  Absent evidence to show error or injustice, there is no basis to grant the relief requested.




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)                                         AR20080019418



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ABCMR Record of Proceedings (cont)                                         AR20080019418



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