DOCKET NUMBER:  AR20090003545 


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 correction of the narrative reason for separation from "Did Not Meet Procurement Medical Fitness Standards-No Disability" to a "Disability" discharge. 

2.  The applicant states that he was allowed to enter the military and that during basic combat training it was discovered that he had cataracts but the military did not want to perform the operation to remove them. 

3.  The applicant provides a copy of his certificate of birth, dated (issued) 26 March 1968, in support of his request. 

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 records show he enlisted in the Regular Army for a period of 3 years on 22 November 1983 and was subsequently assigned to Fort Sill, OK, for completion of basic combat and advanced individual training under the one station unit training (OSUT) program.

3.  Shortly after his arrival at Fort Knox, the applicant complained of poor vision in bright light.  His DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings), dated 26 January 1984, shows he underwent an entrance physical examination where he was diagnosed as having congenital cataracts since birth. The attending physician remarked on the DA Form 4707 that the applicant was found unfit for appointment or enlistment in accordance with medical fitness standards in effect and, in the opinion of the attending physician, his condition existed prior to service (EPTS).  He further recommended that a Medical Board evaluate the applicant for consideration for separation.

4.  On 30 January 1984, the medical approving authority approved the findings of the EPSBD and recommended that the applicant be separated from the service under the provisions of paragraph 5-11 of Army Regulation 635-200 (Personnel Separations). 

5.  On 1 February 1984, the applicant concurred with the recommendation of the EPSBD and requested discharge from the Army without delay.  Item 21 (Action by Service Member) of the DA Form 4707 shows that the applicant understood that legal advice of an attorney employed by the Army was available to him and that he also could consult with a civilian counsel at his own expense.

6.  On 1 February 1984, the discharge authority approved the applicant's separation from the Army.  Accordingly, he was discharged on 9 February 1984. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows that his character of service was "entry level status" (uncharacterized) under the provisions of paragraph 5-11 of Army Regulation 635-200, by reason of failure to meet procurement medical fitness standards.  It shows he completed a total of 2 months and 18 days of creditable service, and that he was not transferred to the U.S. Army Reserve nor did he have a Reserve Obligation Termination Date (Item 12i).

7.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 5-11 specifically provides that Soldiers who are 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, active duty for training, or initial entry training will be separated.  A medical proceeding conducted by an EPSBD, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within six 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 the time of enlistment, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. The characterization of service for Soldiers separated under this provision will normally be honorable, but will be uncharacterized (entry level status) if the Soldier has not completed more than 180 days of creditable continuous active duty service prior to the initiation of separation action.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, U. S. Code (USC) , Chapter 61, (10 USC 61) and Department of Defense Directive (DODD) 1332.18.  It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  Soldiers are referred into the PDES system when it is determined that they did not meet physical standards for enlistment, appointment and/or induction in accordance with chapter 2 of Army Regulation 40-501, or they no longer meet medical retention standards in accordance with chapter 3, Army Regulation 40-501.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the narrative reason for his separation should be changed to show he was discharged for disability.  

2.  The evidence of record shows the applicant was found medically unqualified for service immediately after reporting for basic combat training.  The EPSBD proceedings clearly established that he suffered from a disqualifying medical condition that existed prior to his service.  Because this condition was identified within his first 180 days of service, his discharge was appropriately characterized as an entry level character of service (uncharacterized).  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  There is no evidence in the available records nor did the applicant provide evidence to substantiate a correction to the narrative reason for separation.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that 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)                                         AR20090003545





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ABCMR Record of Proceedings (cont)                                         AR20090003545



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