IN THE CASE OF:
BOARD DATE: 16 March 2010
DOCKET NUMBER: AR20090006460
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 his records be corrected to show that the Army's Physical Evaluation Board (PEB) found his condition did not exist prior to service (EPTS) and was not aggravated by his service.
2. The applicant states, in effect, that the PEB decision that his chronic bilateral painful feet existed prior to his service and were not aggravated by his service is incorrect and that medical practitioners claim he was born flat-footed. He states, in effect, that he enlisted in the Army without a waiver and was able to enlist in military occupational specialty (MOS) Infantryman (11B). He states that if he had had a preexisting condition, he would not have been allowed to enlist or serve in the Infantry. He continues to state that he was ignorant of the fact that he was born with such conditions that could cause him any pain or discomfort. He concludes by stating he may have been flat-footed prior to his entry in the military but his "painful feet" did not exist prior to service but were a direct result of his military service.
3. The applicant provides a self-authored statement 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. Item 35 (Feet) of the applicant's Report of Medical Examination dated 10 June 2002 shows that he had abnormal feet.
3. The applicant enlisted in the Regular Army on 12 June 2003. He completed basic combat and advanced individual training and was awarded MOS 11B (Infantryman).
4. The applicants PEB packet is not available. Item e of the additional instructions in Orders Number 034-0027, Directorate of Human Recourses, U.S. Army Garrison Hawaii, Schofield Barracks, HI dated 3 February 2006 shows that the applicant's separation was based upon a medical condition that existed prior to military service.
5. The applicant was discharged from active duty on 29 March 2006 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(4), based on disability, EPTS, PEB with an honorable discharge. He completed 2 years, 9 months, and 18 days of active military service during that period of service.
6. Army Regulation 635-40 states, in pertinent part, 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. Examples are congenital malformations and hereditary conditions or 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 that they existed prior to military service.
7. 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. Orders Number 034-0027 dated and the applicant's DD Form 214 show that he was separated with a disability that EPTS, by a PEB. His PEB packet is not available, and there is no evidence of record nor did the applicant provide evidence that shows his condition was manifested or aggravated after he entered active duty. Therefore, there is no basis for changing his narrative reason for discharge.
2. There is a presumption of administrative regularity in the conduct of governmental affairs. This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption. In this case, the applicant has failed to provide sufficient credible evidence to rebut this presumption. In view of all of the foregoing, and in the absence of documentary evidence to the contrary, the preponderance of the evidence indicates that the applicant was properly and equitably discharged based on a medical condition that EPTS.
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) AR20090006460
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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