IN THE CASE OF:	  

		BOARD DATE:	   14 May 2009

		DOCKET NUMBER:  AR20080019536 


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 separation.

2.  The applicant states, in effect, that all his military personnel service records are wrong.  He states that a captain promised him at least 25 to 35 percent disability when he separated.  He further states he was in the service much longer than his records show to include two periods of hospitalization.  

3.  The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with a separation date of 14 July 1967, Social Security Card, and selective service registration card. 

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 8 June 1967, the applicant enlisted in the Regular Army for a 3-year period at Nashville, Tennessee, and then proceeded to Fort Benning, Georgia, for basic combat training. 

3.  On 27 June 1967, the applicant was examined by medical personnel at Martin Army Hospital, Fort Benning, Georgia.  This examination shows that he was diagnosed with bronchiectasis in his left lung and that he had had a lobectomy (surgical excision of a lobe of the lung) in June 1955.  The doctor stated the applicant's two medical diagnoses disqualified him from service in the Armed Forces and recommended separation.

4.  On 30 June 1967, a Medical Evaluation Board (MEB) convened and found the applicant medically unfit for further enlistment in accordance with established military medical fitness standards.  The MEB determined that the applicant's medical condition and physical defect did not occur in the line of duty and that his medical condition existed prior to his entry on active duty.  The MEB recommended separation under the provisions of paragraph 5-9, Army Regulation 635-200 (Enlisted Personnel Separations) and paragraph 2-24c of Army Regulation 40-501 (Standards of Medical Fitness) for not meeting medical procurement fitness standards at the time of his entry onto active duty. 

5.  On 30 June 1967, the applicant authenticated the MEB findings and recommendations.  

6.  On an unknown date, the applicant requested separation due to a medical condition that would have permanently disqualified him had it been revealed upon his entrance into the Armed Forces.  In his statement, he indicated that he had been counseled as to his rights and that he fully understood his right to be considered by a physical evaluation board.

7.  On 5 July 1967, the separation authority approved the applicant's discharge in accordance with the provisions of Army Regulation 635-200.

8.  On 14 July 1967, the applicant was discharged from the Regular Army for failure to meet the medical fitness standards for enlistment.  This same DD Form 214 shows that the applicant was in a basic trainee status upon discharge and that his net active service was 1 month and 7 days.

9.  Army Regulation 635-200 (Enlisted Personnel Separations) provides the basic authority for the separation of enlisted personnel.  At that time, paragraph 5-9 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 four 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. 

10.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 2-24, in effect at the time, states in pertinent part that acute bronchitis and a lobectomy of the lung is cause for rejection for appointment, enlistment and induction into the Army.  

11.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army Physical Disability Evaluation system, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or the proximate cause was while performing active duty or inactive duty training.

12.  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 applicant was determined to be medically disqualified under enlistment medical fitness standards for two conditions which were shown to have existed prior to his enlistment.

2.  As such, he was not entitled to be processed under the disability evaluation system and could not have been given a medical separation.

3.  Since the applicant had preexisting medical conditions which prevented him from completing his initial entry training, he was properly separated due to failure to meet procurement medical fitness standards.

4.  Records show the applicant's rights were protected, that he personally elected separation, and that he was subsequently discharged by the separation authority with an honorable characterization of service.  His separation processing was accomplished in accordance with the applicable regulations in effect at the time.  Lacking independent evidence to the contrary, it appears that all requirements of law and regulation were met and that the applicant's DD Form 214 was correctly prepared by the transition authority at Fort Benning, Georgia.  The applicant has not submitted any evidence to show his date of discharge is incorrect.

5.  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.  Therefore, there is no basis for changing the reason for the applicant’s discharge in this case.

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)                                         AR20080019536





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ABCMR Record of Proceedings (cont)                                         AR20080019536



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