IN THE CASE OF:	  

		BOARD DATE:	        9 September 2009

		DOCKET NUMBER:  AR20090007025 


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 DD Form 214 (Report of Separation from Active Duty) to show the correct date of and reason for his discharge.

2.  The applicant states he was recently awarded a 30-percent service-connected disability rating for his left foot which was injured during basic training.  He adds that his DD Form 214 should not have listed the reason for separation as an EPTS (existed prior to active duty) injury, medically unfit for duty.  His DD Form 214 should have shown that his term of service was cut short due to in-service injury.  He further adds that he suffered from neurological damage after his military service and has been diagnosed with Amiotropic Lateral Sclerosis (ALS).

3.  The applicant provides a self-authored letter, dated 7 April 2009; a copy of his Department of Veterans Affairs (DVA) rating decision, dated 6 June 2006; a copy of his DD Form 214, dated 10 December 1974; a copy of a notarized statement, dated 17 January 2006, from his basic training drill instructor; a copy of his Honorable Discharge Certificate, dated 10 December 1974; and various photographs of his former unit and/or members of that unit, 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 28 September 1974 and was subsequently assigned to Company A, 6th Training Battalion, 3rd Training Brigade, Fort Ord, CA, for completion of basic combat training.

3.  A copy of the applicant's complete separation packet is not available for review with this case.  However, his records contain an application for an expeditious discharge for physical disability, dated 5 November 1974, in which he indicated the following:

	a.  that based on the findings and recommendations of a medical board, he was considered to be unfit for retention in military service due to a physical disability that had been found to have existed prior to his enlistment and which was neither incident to nor aggravated by his military service; 

	b.  he was entitled to the same consideration and processing as any other member of the Army who is separated for physical disability to include consideration of his case by the adjudicative system established by the Secretary of the Army for processing disability separations; however, he elected not to exercise his right and also indicated that he understood that entitlement to DVA benefits would be determined by the DVA; and

	c.  if his application was approved, he understood he would be separated by reason of physical disability EPTS and would receive a discharge of the type commensurate with the character of his service.

4.  On 11 November 1974, the separation authority approved the applicant's separation from military service under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of an EPTS physical disability.  

5.  On 3 December 1974, Headquarters, U.S. Army Training Center and 7th Infantry, Fort Ord, CA, published Special Orders Number 337 directing the 

applicant's transfer to the U.S. Army Transfer Station for the purpose of separation effective 10 December 1974.  The applicant was accordingly discharged on 10 December 1974.  The DD Form 214 he was issued shows he was honorably discharged under the provisions of chapter 9 of Army Regulation 635-40 and that he completed 2 months and 13 days of creditable active service.

6.  In a self-authored statement, dated 7 April 2009, the applicant states that he was recently able to prove that his departure from the Army was due to an injury received during basic training and was accordingly awarded a service-connected disability rating by the DVA.  He adds that he served for more than 90 days and his service was shortened by his in-service injury.  He now would like his DD Form 214 corrected to reflect either service of more than 90 days or a service period cut short by an in-service injury or both.

7.  The applicant submitted a copy of the DVA rating decision, dated 6 June 2006, which shows he was awarded a service-connected disability rating for his left foot.

8.  The applicant submitted a notarized statement, dated 17 January 2006, from his former drill instructor who states that he remembers the applicant as a strong and fit individual with no visible physical limitations.  He adds that he made him a recruit platoon sergeant immediately based on his physical fitness, education, and prior training.  He also adds that he remembers the applicant sustained a foot injury when he fell from the monkey bars outside the mess hall at Fort Ord, CA, and that his case was remarkable because he tried to stay in the Army.  After his injury, the applicant visibly limped on the left foot and did so when he was discharged.  He also showed up during his class graduation and he (the drill instructor) even attempted to reenroll him in the next class with no luck.  He eventually agreed to separation and was discharged in the latter part of December 1974 or early 1975.

9.  Army Regulation 635-40 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.  


10.  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.  

11.  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.  

12.  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 PEB.

13.  Title 38, U.S. Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher DVA rating does not establish error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from 

further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The DVA does not have authority or responsibility for determining physical fitness for military service.  The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to reflect either service of more than 90 days or service period cut short by an in-service injury or both.

2.  With respect to the applicant's length of service, the applicant entered active duty on 28 September 1974 and was discharged on 10 December 1974.  He completed 2 months and 13 days of creditable active service which is correctly shown on his DD Form 214.  There is no indication or evidence that he completed any other period of active service or that he served longer than 90 days. 

3.  With respect to his service being shortened by an in-service injury, 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.  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.  

4.  The applicant's medical board is not available for review with this case.  However, 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.  It is presumed that the medical board diagnosed him as unfit for enlistment and/or induction, but 

fit for retention.  The applicant voluntarily requested a discharge from the Army due to this EPTS condition and, having met the criteria of chapter 9 of Army Regulation 635-40, in effect at the time, the separation authority approved his discharge.  

5.  The record shows the applicant voluntarily requested expeditious discharge by reason of physical disability of an EPTS medical condition.  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.

6.  The applicant now believes his DD Form 214 should be changed because the DVA granted him a service-connected disability rating.  However, an award of a rating by another agency does not establish error in the reason for separation or the award of a rating assigned by the Army's disability evaluation system.  Operating under different laws and their own policies, the DVA does not have the authority or the responsibility for determining medical unfitness for military service.  The DVA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.  

7.  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

___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)                                         AR20090007025





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ABCMR Record of Proceedings (cont)                                         AR20090007025



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