IN THE CASE OF:	  

		BOARD DATE:	  11 June 2009

		DOCKET NUMBER:  AR20090001805 


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 from the Army National Guard (ARNG) on 15 February 1977 be changed to a medical discharge. 

2.  The applicant essentially states that he was released from basic training for a medical condition for which he should have been medically discharged.  He also contends that he is unable to work because of this medical condition and has no Department of Veterans Affairs (DVA) benefits.

3.  The applicant provides, in support of his application, the front pages of his Standard Form (SF) 88 (Report of Medical Examination) and SF 93 (Report of Medical History) from his physical examination on 19 October 1976; a two-page SF 600 (Chronological Record of Medical Care), initially dated 24 January 1977; a DA Form 3349 (Medical Condition - Physical Profile Record), dated 26 January 1977; a DA Form 2496 (Disposition Form), subject: Placement on Outpatient Medical Hold Status, dated 27 January 1977; a DA Form 3349 (Medical Condition – Physical Profile Record), dated 3 February 1977; a DA Form 3947 (Medical Board [MEB] Proceedings), dated 3 February 1977; an SF 502 (Narrative Summary [NARSUM]), dated 3 February 1977; an SF Form 88, dated 3 February 1977; a message, dated 11 November 1977, from the Veterans Administration (VA) Regional Office, NY to the Chief of Staff, Division of Military and Naval Affairs, Albany, NY, requesting all service medical records pertaining to the applicant; and a reply memorandum to the VA, dated 8 December 1977, with the requested documents.


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 majority of the applicant’s records pertaining to his service in the ARNG in 1977 are not available for review.  However, the applicant provided a sufficient amount of documents to conduct a fair and impartial review of this case.

3.  The applicant's military records show that he was credited with serving 
2 years of active duty in the Army of the United States from 27 February 1968 to 17 May 1970 [he had 2 months and 20 days of lost time], then was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.  On 1 February 1974, he was honorably discharged from the USAR.    

4.  On 24 January 1977, the applicant entered active duty for training (ADT) as a member of the New York Army National Guard (NYARNG) for basic training at Fort Dix, New Jersey.

5.  The applicant provided a DD Form 3349, dated 3 February 1977, which shows that he was issued a physical profile for pectus excavatum [a chest deformity caused by depression of the breastbone or sternum].  This document also shows that while the applicant was considered fit for retention on active duty, he was unfit for induction according to Army Regulation 40-501 (Standards of Medical Fitness) and could apply for separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), if he so desired.  An SF 600 with entries on 24 and 25 January 1977 also reveals that the applicant was rejected at the Fort Hamilton, New York, Armed Forces Examining and Entrance Station (AFFES) in 1973 for a heart murmur, and that while his chest pain was subdued until about 8 months prior, he had been in full pain since and, most notably, prior to entering ADT.

6.  The applicant also provided MEB proceedings which show that this board recommended that he be separated from the military service under the provisions of Army Regulation 635-200, paragraph 5-9 (Discharge of personnel who did not meet procurement medical fitness standards).  On 9 February 1977, the applicant agreed with the MEB's action.  A 3 February 1977 NARSUM also shows, in pertinent part, that the applicant did not desire to remain in the service.

7.  Additionally, the applicant provided a message, dated 11 November 1977, from the VA Regional Office in New York addressed to the NYARNG, which shows that he was released from active duty on 15 February 1977.
  
8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), Appendix B (Army Application of the Department of Veterans Affairs Schedule for Rating Disabilities), paragraph B-10 (Rating of Disabilities Aggravated by Service), states, in pertinent part, that hereditary, congenital, and other conditions that existed prior to entry onto active duty frequently become unfitting through natural progression and should not be assigned a disability rating unless service aggravated complications are clearly documented or unless a Soldier has been permitted to continue on active duty after such a condition, known to be progressive, was diagnosed or should have been diagnosed.

9.  Paragraph 5-9 of Army Regulation 635-200, in effect at the time, provided that individuals who were not medically qualified under procurement medical standards when accepted for induction or initial enlistment would be discharged when a medical board, regardless of the date completed, established that a medical condition was identified by appropriate military medical authority within 
4 months of the member's initial entrance on active duty or ADT under the Reserve Enlistment Program of 1963 which would have permanently disqualified him for entry into the military service had it been detected at that time, and did not disqualify him for retention in the military service under the provisions of Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), Army Regulation 40-501.  As an exception, an individual who is found to meet the requirements above, but who elects to complete the period of service for which inducted or enlisted, will not be discharged under this paragraph.  Such member would be required to sign a statement electing to complete his period of service, notwithstanding his eligibility for discharge under this paragraph.  

10.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed guidance on the issuance and preparation of the DD Form 214 (Report of Separation from Active Duty).  It provided, in pertinent part, that the DD Form 214 would not be issued to members of the Reserve components unless they completed more than 89 days of ADT.
11.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This 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 his discharge from the ARNG on 15 February 1977 should be changed to a medical discharge.

2.  The applicant's contention that he should have been medically discharged on 15 February 1977 was carefully considered, as was the fact that he stated that he is unable to work because of his medical condition and has no DVA benefits.
However, 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.  

3.  The fact that the applicant had a medical condition was noted; however, the evidence of record clearly shows that this medical condition existed prior to his entry onto ADT, and the applicant failed to provide any evidence to prove otherwise.  It also appears that even though he was found ineligible for induction, he was qualified for retention, but voluntarily (emphasis added) requested separation from the service due to his medical condition which existed prior to service.  In view of the foregoing, there is no basis for changing his discharge from the ARNG on 15 February 1977 to a medical discharge.    

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X___  ____X___  ___X____  DENY APPLICATION






BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  While the Board regrets that a more favorable response could not be accomplished, it wishes to thank the applicant for the sacrifices made by him in service to the United States during his military service, and especially during the 
Vietnam War.  The applicant and all Americans should be justifiably proud of his honorable service in arms.



      _________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)                                         AR20090001805



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ABCMR Record of Proceedings (cont)                                         AR20090001805



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