IN THE CASE OF:	  

		BOARD DATE:	  12 May 2009

		DOCKET NUMBER:  AR20090000809 


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, medical retirement and all back pay and allowances from his initial entry onto active duty in 1971 to the present. 

2.  The applicant states, in effect, that he has no veteran's benefits and no insurance, and that he suffers from injuries sustained in car accidents.  He further states he would like a fair shake from his initial enlistment in 1971 to the present. 

3.  The applicant did not provide any supporting documents with 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 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 military personnel record shows that on 14 June 1971, he was physically examined by qualified medical personnel at the Armed Forces Entrance and Examining Station in Cleveland, Ohio.  The applicant completed a Standard Form (SF) Form 89 (Report of Medical History) during his medical examination and Item 17 (Statement of Examinee's Present Health in Own Words) shows his health was good.  The medical doctor's evaluation documented on the applicant's SF Form 88 (Report of Medical Examination) shows that the applicant had no disqualifying defects or communicable diseases and stated the applicant was qualified for service in the Regular Army.  

3.  On 23 August 1971, the applicant enlisted in the Regular Army for a 2-year period and then proceeded to Fort Knox, Kentucky for basic combat training. 

4.  The applicant's military medical record shows that on 20 September 1971, the applicant was evaluated by a military psychiatrist who initiated and signed a DA Form 3349 (Medical Condition - Physical Profile Record) which shows the applicant suffered from chronic emotional instability.  The psychiatrist recommended a Medical Evaluation Board (MEB) be held on the applicant and suspension from all military training pending completion of the MEB.  The psychiatrist stated that the applicant's medical profile was permanent and that this medical evaluation supersedes the applicant's previous medical condition and physical profile records.

5.  On 11 October 1971, the applicant was examined by medical personnel at Ireland Army Hospital at Fort Knox.  This examination shows that the applicant was diagnosed with chronic and severe paranoid schizophrenia.  The doctor stated the applicant was not qualified for continued service in the Armed Forces and recommended separation.

6.  On 21 October 1971, an MEB convened and found the applicant medically unfit under enlistment 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 Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-9, and Army Regulation 40-501 (Standards of Medical Fitness), paragraph 2-2 for not meeting medical procurement fitness standards at the time of his entry onto active duty. 

7.  On 26 October 1971, the applicant authenticated the MEB's findings and recommendation.  At that time, he indicated that he did not wish to appeal the MEB findings and recommendation. 

8.  On 26 October 1971, 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 on his rights and that he fully understood his right to submit a voluntary application for separation by reason of an erroneous enlistment into the Regular Army.  

9.  On 27 October 1971, the separation authority approved the applicant's discharge in accordance with the provisions of Army Regulation 635-200, paragraph 5-9.

10.  On 16 November 1971, the applicant was discharged from the Regular Army.  The reason for discharge noted on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged due to "not meeting medical fitness standards at time of enlistment."  This DD Form 214 shows that the applicant was in a basic trainee status upon discharge and that his net active service was 2 months and 24 days.

11.  Army Regulation 635-200 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.  The characterization of service for Soldiers separated under this provision of regulation will normally be honorable.

12.  Army Regulation 40-501, paragraph 3-3b(1), provides that for an individual to be found unfit by reason of physical disability (discharge with severance pay or medical retirement), he or she must be unable to perform the duties of his or her office, grade, or rating and the conditions must have been incurred while entitled to base pay.

13.  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 contends that he should be medically retired and subsequently entitled to all back pay and allowances from his initial entry date in 1971.  He contends that he has neither veteran's benefits nor private health insurance and suffers from injuries sustained in car accidents.

2.  The evidence of record shows that the applicant had a medical condition, chronic and severe paranoid schizophrenia, which existed prior to his enlistment in 1971.  This condition was determined to be medically disqualifying for enlistment, but not for retention. 

3.  Records show the applicant's rights were protected, he personally elected separation, and 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.

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for benefits from another agency.

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)                                         AR20090000809



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ABCMR Record of Proceedings (cont)                                         AR20090000809



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