IN THE CASE OF:
BOARD DATE: 19 May 2009
DOCKET NUMBER: AR20090001908
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 that item 28 (Narrative Reason for Separation) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed.
2. The applicant states that his discharge was due to medical reasons.
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 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 applicants 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 applicants 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 5 June 1980. On 1 July 1980, he was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 5, for physical disability - existed prior to service (EPTS) - Medical Board. His medical separation packet is not available.
3. Item 25 (Separation Authority) on the applicant's DD Form 214 shows the entry "CHAPTER 5 AR [Army Regulation] 635-40." Item 26 (Separation Code) on his DD Form 214 shows the entry "KFN." Item 28 on his DD Form 214 shows the entry "PHYSICAL DISABILITY - EPTS - MEDICAL BOARD."
4. 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. The regulation defines "physically unfit" as unfitness due to physical disability. In pertinent part, it states that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service. Likewise, manifestation of lesions or symptoms of chronic disease from date of entry on active military service (or so close to that date of entry that the disease could not have started in so short a period) will be accepted as proof that the disease existed prior to entrance into active military service.
5. Army Regulation 635-40, chapter 5, provides for separation of an enlisted Soldier for non-service aggravated EPTS conditions when Soldier requests waiver of PEB evaluation. If the time period exceeds 6 months or if the condition is disqualifying under Army Regulation 40-501, chapter 3, a Soldier is entitled to evaluation by a PEB or may waive evaluation under this chapter. The regulation requires that the Soldier is eligible for referral into the disability system; the Soldier does not meet medical retention standards as determined by the medical board; the disqualifying defect or condition existed prior to entry on current period of duty and has not been aggravated by such duty; the Soldier is mentally competent; knowledge of information about his/her medical condition would not be harmful to the Soldiers well being; further hospitalization or institutional care is not required; after being advised of the right to a full and fair hearing, the Soldier still desires to waive PEB action; and the Soldier has been advised that a PEB evaluation is required for receipt of Army disability benefits, but waiver of the PEB will not prevent applying for Department of Veterans Affairs benefits. If the Soldier is in entry level status at the time of processing, the service may be described as uncharacterized.
6. 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 "KFN" is "Physical disability prior to entry on active duty - Medical Board" and the regulatory authority is Army Regulation 635-40, chapter 5.
DISCUSSION AND CONCLUSIONS:
The applicants contention was considered. However, his narrative reason for separation was administratively correct and in conformance with applicable regulations at the time of his separation. In addition, it already shows that he was separated for medical reasons (albeit for a medical reason that existed prior to his enlistment).
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.
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