IN THE CASE OF:	  

		BOARD DATE:	        22 September 2009

		DOCKET NUMBER:  AR20090007585 


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 his honorable discharge, dated 
1 February 1974, be changed to reflect that he was medically discharged due to erroneous enlistment.

2.  The applicant states, in effect, that he was erroneously enlisted on 9 February 1972 under the "Project 100,000" program because he was only 17 years and 40 days of age and because he did not meet the mental category scores required for enlistment.  Accordingly, he should have been deemed an erroneous enlistee and any misconduct that occurred during his period of enlistment should be removed from his records.  He goes on to state that he tried to reenlist in the United States Army Reserve (USAR) in 1977 and he was denied reenlistment because he tested positive for hepatitis C.  Accordingly, he should have been medically discharged or retired by reason of permanent disability.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty), a copy of his 9 February 1972 enlistment contract, a copy of his DA Form 20 (Enlisted Qualification Record), a copy of a Ready Reserve Service Agreement showing that he extended his agreement in the USAR on 7 August 1976 to 8 February 1978, a copy of a DD Form 1584 (National Agency Check Request), and a copy of his appeal to the Department of Veterans Affairs (VA).





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 were not available for the Board to review; however, the applicant has provided sufficient records for the Board to conduct a fair and impartial review of this case.

3.  The applicant was born on 25 December 1954 and enlisted with parental consent in New Haven, Connecticut on 9 February 1972 for a period of 2 years.  He was 17 years and 54 days of age and had an Armed Forces Qualification Test (AFQT) score of 26 (Category IV), he had two scores over 90.

4.  He completed basic training at Fort Dix, New Jersey and advanced individual training at Fort Lee, Virginia.  He was advanced to the pay grade of E-4 on 
18 July and 5 August 1972.  He was transferred to Germany for duty as a communications electronic repair parts specialist.

5.  He departed Germany on 30 January 1974 and was transferred to Fort Dix, where he was honorably released from active duty (REFRAD) on 1 February 1974 as an overseas returnee.  He had served 1 year, 11 months and 23 days of total active service and he was transferred to the USAR Control Group (Annual Training) to complete his statutory service obligation which ended on 8 February 1978.

6.  There is no evidence and the applicant has provided no evidence to show he was diagnosed as having hepatitis C while serving on active duty or that he was denied reenlistment for having hepatitis C.

7.  A review of the applicant's appeal to the VA shows that during the VA's review of the applicant's records, it was noted that the applicant admitted to the abuse of hashish, marijuana, and intravenous (IV) administration of amphetamines and 
that he had attended a drug rehabilitation clinic for 1 1/2 months.  The VA denied the applicant's appeal to have his Hepatitis C condition be deemed service-connected.

8.  At the time the applicant submitted his application to this Board he was incarcerated by the Florida Department of Corrections.

9.  Army Regulation 601-210, in effect at the time, provided the criteria for enlistment in the Regular Army.  It provided, in pertinent part, that male applicants must be not less than 17 years of age and must not have reached their 35th birthday.  The mental requirements were that individuals attain a minimum score of 19 on the enlistment screening test if applying at a recruiting station and achieve a qualifying score on the AFQT of 31 or above, or an AFQT of 16 - 30 and be a high school graduate, or have an AFQT of 16 - 30 and have scores of 90 or above on two aptitude areas of the Army Qualification Battery (AQB).  Group IV of the AFQT were individuals scoring in the 10 - 30 percentile.  Under the "Project 100,000" known as new standards, individuals who were in the 10 - 20 percentile were allowed to enlist under that criteria.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), 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 chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the medical evaluation board (MEB) determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB).

11.  Paragraph 3-1 of this regulation provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform his/her duties and assign an appropriate disability rating before that service member can be medically separated or retired.


12.  Paragraph 3-2b provides for retirement or separation from active service.  This provision of regulation states that disability compensation is not an 
entitlement acquired by reason of service incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  The regulation also states that, when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit. 

13.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Department of Veterans Affairs Schedule for Rating Disabilities.  Department of Defense Instruction 1332.39 and Army Regulation 635-40, Appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and found to lack merit.  He was properly enlisted with parental consent under the criteria in effect at the time and upon completion of his enlistment, he was honorably REFRAD as an overseas returnee and he was transferred to the USAR to complete his statutory service obligation.

2.  The applicant's contention that he should have been medically discharged or retired by reason of permanent physical disability has also been noted and found to lack merit.  The applicant has provided no evidence to show that he was medically unfit or that he contracted hepatitis C while on active duty.  Accordingly, there appears to be no basis to grant his request.  It should also be noted that if the applicant's service during the period between 1972 and 1974 was voided due to an erroneous enlistment, he would have no status or entitlement to any benefits and he could not be medically discharged or retired.

3.  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)                                         AR20090007585



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ABCMR Record of Proceedings (cont)                                         AR20090007585



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