BOARD DATE:	  11 August 2009

		DOCKET NUMBER:  AR20090005405 


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 his records to show he was medically discharged. 

2.  The applicant states that the Medical Evaluation Board (MEB) tried to put him out of the Army by saying he was unfit for duty due to a malunion of an old fracture, shaft of tibia, left.  He adds that prior to entering active duty he told the Army doctors about a previous injury, but was medically cleared to enter active service in June 1968.  However, after serving for about 1 month and 23 days, the MEB determined that he was unfit and his commanding officer requested his discharge claiming that he (the applicant) would not be able to keep up with the rest of the squad.  He also adds that he was not present at a hearing and did not present any views on his own behalf.  He feels that the MEB was a cover up to conceal what the Army medical advisor should have done in the first place when he first examined him and determined that he was fit for duty.  He concludes by stating that he served honorably and his injury was aggravated during his military service and he should have received a medical discharge.

3.  The applicant provides a copy of a letter from the Disabled American Veterans, dated 9 May 2008; a copy of a letter from the Department of Veterans Affairs, dated 12 May 2008; a copy of a DA Form 3947 (Medical Board Proceedings), dated 5 August 1968; a copy of a Standard Form 502 (Clinical Record Narrative Summary), dated 5 August 1968; a copy of a DA Form 137 (Installation Clearance Record), dated 9 August 1968; and a copy of a DD Form 
214 (Armed Forces of the United States Report of Transfer or Discharge), dated 12 August 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 (RA) for a period of 3 years on 20 June 1968 and he was subsequently assigned to Company E, 7th Training Battalion, 2nd Training Brigade, Fort Campbell, KY for completion of basic combat training.

3.  On 5 July 1968, the applicant requested to be discharged from military service under the provisions of paragraph 5-9a(2) of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) and indicated that he felt he was erroneously enlisted since he did not meet medical fitness standards of chapter 2 of Army Regulation 40-501 (Standards of Medical Fitness). 

4.  On or about 5 August 1968, the applicant complained of pain in his left knee which, he stated, had been troubling him for a few years and that it had resulted from a fracture to his leg when he was 9 years old.  He subsequently underwent a physical examination that noted a deformity to his left tibia with limitations to the extension and flexion of the knee.  The attending physician remarked that the applicant was unfit for enlistment and/or induction under the provisions of paragraph 2-11b of Army Regulation 40-501 and that although he was fit for retention under chapter 3 of the same regulation, he was erroneously enlisted and it was recommended that he be separated from the Army.

5.  On 5 August 1968, an informal MEB convened at the U.S. Army Hospital, Fort Campbell, and after consideration of clinical records, laboratory findings, health records, and medical examinations, the MEB found the applicant had the medical 
condition of malunion of an old fracture, shaft of tibia, left.  The MEB also 
determined that the applicant’s condition existed prior to service (EPTS) and it was neither aggravated by his military service nor determined to be in the Line of Duty (LOD).  The MEB recommended the applicant’s return to duty for separation in accordance with paragraph 54e(3) of Army Regulation 40-3 (Medical, Dental, and Veterinary Care) and no strenuous physical activity involving the lower extremities.  

6.  On 5 August 1968, the MEB approving authority approved the findings and recommendations of the MEB and, on 8 August 1968, the applicant indicated that he was informed of the approved findings and recommendations of the MEB.

7.  On 8 August 1968, by memorandum, the separation authority approved the applicant’s discharge in accordance with paragraph 5-9(a) of Army Regulation 635-200 and directed he be furnished an Honorable Discharge Certificate.  On 8 August 1968, the applicant was accordingly discharged.  The DD Form 214 he was issued shows he completed 1 month and 23 days of creditable active military service. 

8.  Army Regulation 601-270 (Armed Forces Examining and Entrance Stations), in effect at the time, prescribed the primary functions of the AFEES.  Paragraph 69 contained guidance on the scope of the physical inspection.  It stated, in pertinent part, that applicants for enlistment or induction who had undergone a medical examination of the prescribed scope within 180 days prior to the induction processing and been found medically qualified would undergo a physical inspection.  The examining physician would review the previous medical examination reports and any accompanying additional documents and discuss with the examinee any intervening injuries and illnesses, or any other health problems not a matter of record.  The examinee, with clothing removed, would be closely observed by the examining physician to detect the presence of any communicable diseases and apparent (emphasis added) defects not previously recorded.  

9.  Army Regulation 635-200 provides for the separation of enlisted personnel.  Paragraph 5-9 of the regulation in effect at the time provides for the separation of enlisted personnel who are not medically qualified under procurement medical fitness standards when accepted for initial enlistment or induction.  Eligibility for discharge will be governed by a medical board finding that the individual has a medical condition which would have permanently disqualified that individual for entry into military service had it been detected at that time and does not disqualify him from retention in military service under the provisions of chapter 3 of Army Regulation 40-501.  A request for discharge will be submitted by the individual to his unit commander within 4 months of the date of initial entry on active duty or initial entry on active duty for training under the Reserve Enlistment Program.  Applications for discharge would be processed promptly and separation would be accomplished within 72 hours following approval by the discharge authority.  The authority for discharge would be Army Regulation
635-200 and the Separation Program Number 375 will be included in the directive or orders directing the individual to report to the appropriate transfer center/authority.  Members who do not meet retention medical fitness standards will be processed under the provisions of Army Regulation 635-40a and b.  

10.  Army Regulation 40-501 provides for the standards of medical fitness of Army personnel.  Paragraph 2-11 of the regulation in effect at the time provides for miscellaneous reasons or causes for rejection of appointment, enlistment, or 
induction.  It states that some of these limitations are limitations of motion, arthritis, chondromalacia, disease of any bone or joint, fractures, injuries to the 
bone or joint, joint replacement, dislocations, muscular paralysis, congenial malformation of bones and joints, deficient muscular development, and several others.  Paragraph 3-14 states that malunion of fractures, when after appropriate treatment there is more than moderate malunion with marked deformity and more than moderate loss of function, does not meet retention standards.
10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the separation of Soldiers who are physically unfit because of physical disability.  The regulation in effect at the time provides for separation of an enlisted Soldier for non-service aggravated EPTS conditions and applies to enlisted Soldiers on active duty for more than 30 days.  Separation under this regulation is not to be confused with separation under the provisions of Army Regulation 635-200, chapter 5.  The latter provides for separation within the first 6 months of entry onto active duty for failure to meet procurement fitness standards.  

11.  Army Regulation 635-40, currently in effect, establishes the Army Physical Disability Evaluation System and 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 office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501, chapter 3.  If the medical evaluation board determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB).

12.  Chapter 9 of Army Regulation 635-40, in effect at the time of the applicant’s discharge, provided the procedures for the expeditious discharge for disabilities existing prior to service.  It provided that when an enlisted member on active duty was believed to be incapable of performing his duties with reasonable effectiveness because of a disability, which was believed not to have been aggravated during any period of active service, the commander concerned would initiate action to request a physical examination.  The medical examination would be forwarded to a medical board for use in consideration of the case and a medical board evaluation would be accomplished.  It further stated that when the medical board recommended a member be separated because of medical unfitness which existed prior to entry into military service or which was incurred when the member was not entitled to basic pay and which had not been aggravated by such service, the medical treatment facility commander would cause the member to be offered the opportunity for expeditious separation, if he was otherwise eligible.  

13.  Chapter 9 of the same regulation also identified counseling and processing requirements and stated, in pertinent part, that the medical treatment facility commander would refer the case to the Physical Evaluation Board (PEB) Liaison Officer (PEBLO) for explanation of benefits, advice on his rights, and the offer of an opportunity for expeditious discharge, if the member agreed with the existed prior to service aspects of his disability.  It further stated, in pertinent part, that the PEBLO was required to advise the member of his right to demand a full and fair hearing before the PEB.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should have been medically retired. 

2.  As a matter of policy the Army accepts many members with EPTS conditions on the chance that they can successfully complete training and serve.  When disqualifying symptoms occur during training or within the first six months of active duty service, these individuals are procedurally subject to separation based on the EPTS condition.  

3.  By regulation, there is a presumption that a Soldier was in sound physical and mental condition upon entering active service (presumption of soundness) except for physical disabilities noted and recorded at the time of entry or when there is an evidence of an EPTS condition that is discovered within the first six months of active duty.  

4.  The evidence of record in this case shows that the applicant suffered a medical condition that was determined to have existed prior to service, was not aggravated by service, and was not incurred in the line of duty.  The MEB diagnosed him as unfit for enlistment and/or induction, but fit for retention.  There is no available evidence of record and the applicant provided none to show that his fracture malunion was more than moderate and that there was a more than moderate loss of function.  The applicant voluntarily requested a discharge from the Army due to this EPTS condition and, having met the criteria of paragraph   5-9 of Army Regulation 635-200 in effect at the time, the separation authority approved his discharge.  There is neither a cover up nor an error or an injustice.

5.  The evidence of record also confirms that although he was found fit for duty during his entrance physical examination, the disqualifying medical condition was his fracture, which by his own admission occurred at a younger age, and which was discovered within six months of his entry on active duty after the applicant had been under constant medical care and observation during his first six weeks of basic training.  

6.  The record shows the applicant voluntarily requested expeditious discharge by reason of erroneous induction based on his not meeting induction medical standards.  There is no evidence suggesting the applicant requested or was denied processing through the PDES, or that he ever requested (demanded) a hearing before the PEB, which was his right to do.  To the contrary, the evidence confirms he voluntarily requested expeditious discharge due to his EPTS medical condition, which in effect confirms he elected not to demand a PEB hearing of his case and that he agreed to the EPTS aspects of his condition, which had been established by a medical board.

7.  There is no regulatory requirement for a Soldier to personally appear before an MEB.  The MEB considers the Soldier’s clinical records, laboratory findings, health records, and medical examinations, in order to reach a diagnosis that help the MEB determine if a Soldier is fit for duty, should be referred to a PEB, or make other disposition.  Furthermore, the evidence of record shows that the applicant indicated that he was informed of the approved findings and recommendations of the MEB.

8.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army when the Soldier is found to not meet retention standards.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

9.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Therefore, he is no basis for granting the applicant's requested relief.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.



      ______________________
               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)                                         AR20090005405



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ABCMR Record of Proceedings (cont)                                         AR20090005405



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