IN THE CASE OF:	  

		BOARD DATE:	  20 October 2009

		DOCKET NUMBER:  AR20090003115 


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 Item 24 (Character of Service) and Item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected.

2.  The applicant states, in effect, that it was said by a medical expert that his foot injury was aggravated by service.  For the purpose of military benefits, his injury was due to training.  For the purpose of his discharge, it should state, honorable.  The applicant adds that during the time of his separation he was told he was being honorably - medically discharged.  At the age of 17 he was not fully brought aware of the situation and/or conditions.  Documentation also shows that at the MEPS (Military Entrance Processing Station), he was cleared for active duty.

3.  In support of his request, the applicant submitted a copy of his DD Form 214, a copy of a DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings), a copy of a Standard Form (SF) 88 (Report of Medical Examination), and a copy of a SF 93 (Report of Medical History).

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 evidence shows the applicant enlisted in the Minnesota Army National Guard (MNARNG) on 28 January 1994 in the rank and pay grade of Private, E-1.  On 9 June 1994, the applicant was ordered to active duty to undergo his basic combat training.  He was assigned to Fort Benning, Georgia, to attend basic combat training.

3.  The applicant's DD Form 214 shows he was not promoted beyond his entry rank and pay grade.

4.  All documents pertaining to the applicant's release from active duty are not available for the Board's review; however, a completed DD Form 214 is on file in his service personnel record.  The DD Form 214 shows that the applicant was released from active duty for training (ADT) in the rank and pay grade of Private, E-1, on 4 August 1994 and was returned to the MNARNG.  He was released from active duty for training under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 5, paragraph 5-11, and his service was characterized as, "Uncharacterized."  The separation code annotated on the applicant's DD Form 214 is "JFW" and the narrative reason for separation is shown to be, "Did Not Meet Procurement Medical Fitness Standards - No Disability."  At the time of the applicant's discharge, he had completed 1 month and 26 days net active service with no time lost.

5.  The evidence shows that on 28 January 1994, the applicant underwent a physical examination for the purpose of enlistment in the Army National Guard at the Fargo MEPS, North Dakota.  The SF 93 the applicant completed in conjunction with his entrance physical examination shows that the applicant denied having bone, joint or other deformity, lameness, or foot trouble.  The applicant underwent an enlistment physical examination on the same date.  The medical examiner indicated he had examined the applicant but made no note (described no abnormality in detail).  Item 77 of the SF 88 that was completed shows the applicant was qualified for enlistment in the Army National Guard.


6.  A DA Form 4707 the applicant provided shows that on 14 July 1994 an EPSBD, after careful consideration of medical records, laboratory findings, and medical examination, found the applicant medically unfit for appointment or enlistment in accordance with current medical fitness standards and in the opinion of the evaluating physicians, the conditions existed prior to service.  The applicant had the following medical conditions and/or physical defects:  painful flat feet.  The applicant was in his third week of training  and had complained of pain in the bottom of both his feet.  The EPSBD opined that the applicant would not be able to complete his military training and recommended that he be separated.  The medical condition or physical defect, the board determined, had existed prior to service and had not been aggravated by military service.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5 established policy and procedures for the separation of enlisted personnel for the convenience of the Government.  This regulation provided that Soldiers being separated for the convenience of the Government would be provided a character of service of honorable, under honorable conditions or an entry level separation.  Paragraph 5-11, in pertinent part, provides for the separation of personnel who did not meet procurement medical fitness standards.  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 entry on active duty (AD) or ADT, for initial entry training would be separated.  Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by appropriate military medical authority within 6 months of the Soldier's initial entrance on AD for Regular Army, or during ADT for initial entry training.  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.

8.  Entry level status is defined in the glossary of Army Regulation 635-200, for ARNGUS and USAR Soldiers, as beginning upon enlistment in the ARNG or USAR.  For Soldiers ordered to ADT for one continuous period, It terminates 180 days after beginning training.  For Soldiers ordered to ADT for the split or alternate training option, it terminates 90 days after beginning Phase II advanced individual training (AIT).  (Soldiers completing Phase I BT or basic combat training (BCT) remain in entry-level status until 90 days after beginning Phase II.)

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 2-3, in effect at the time stated that according to accepted medical principles, there are certain abnormalities and residual conditions which, when discovered, impel the conclusion that they must have existed or must have originated before the individual entered the military service. Examples of these conditions are scars, fibrosis of the lungs; atrophy following disease of the central or peripheral nervous system; healed fractures; absent, displaced, or  resected organs; supernumerary parts; congenital malformations; and similar conditions in which medical authorities are in such consistent and universal agreement as to their cause and time of. origin that no additional confirmation is needed to support the conclusion of their existence prior to military service.

10.  The separation code found on the applicant's DD Form 214, "JFW," is found in Table C-1 of Army Regulation 635-5-1 (Separation Program Designators (SPD) Codes).  The separation code is translated to signify the reason:  "Did Not Meet Procurement Medical Fitness Standards - No Disability."

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that he should have received an honorable discharge for medical reasons and that the reason for his release from ADT for training should be changed were carefully considered; however, there is insufficient evidence to support his claim and to change the existing entries.

2.  Paragraph 5-11 of the applicable regulation provides for the separation of personnel who do not meet procurement medical fitness standards.  When the applicant underwent his medical examination at the MEPS in Fargo, North Dakota, he was considered to be acceptable for enlistment and was so enlisted in the Army National Guard.  As a result of his medical complaints and his inability to successfully meet training requirements, the evidence show that he was referred to an EPSBD while he was only in his third week of basic combat training.

3.  After careful consideration of the applicant's medical records, laboratory findings, and medical examination, the applicant was found medically unfit for enlistment in accordance with current medical fitness standards with painful flat feet and he would not be able to complete his military training.  In the opinion of the evaluating physicians, the condition had existed prior to service; and, contrary to the applicant's unsupported statement that he was told by a medical expert that his foot condition had been aggravated by military service, the EPSBD opined that it had not been aggravated by military service and recommended that he be separated from service.

4.  The medical condition was identified by appropriate military medical authority within 6 months of the applicant's initial entrance on active duty, while he was yet in an entry level status, and in accordance with the applicable regulation, his service was required to be characterized as "uncharacterized."

5.  The evidence shows that separation action was initiated on the applicant prior to his having completed 180 days of continuous active military service in view of the amount of service he had at the time of his discharge.  It is believed, and administrative regularity is presumed, that his separation processing was accomplished in accordance with the applicable regulation.  It is further believed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

6.  The record shows the applicant's service was described as uncharacterized because he was separated before he had completed 180 days ADT.  National Guard Soldiers are considered to be in an entry level status beginning upon their enlistment and terminated 180 days after beginning training.

7.  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.

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)                                         AR20090003115





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ABCMR Record of Proceedings (cont)                                         AR20090003115



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