IN THE CASE OF:	  

		BOARD DATE:	  26 January 2010

		DOCKET NUMBER:  AR20090012404 


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 records be corrected to show he completed his enlistment.

2.  The applicant states, in effect, that in a racially-motivated attack, his drill sergeant turned his bed upside with him asleep in it, resulting in breaking his leg and injuring his shoulder.  He continues by indicating he was kept in isolation for nearly 1 month until he was processed out of the service for medical reasons.  He states that he received no medical treatment during this time and the incident was "brushed under the rug" to protect the drill sergeant's career while destroying his career and disabling him for life.  He states that he agreed to sign the request for discharge but that he did not know what he was signing.

3.  The applicant provides a copy of an Honorable Discharge Certificate, a Veterans Administration (VA) [now known as the Department of Veterans Affairs] Request for Information, Special Orders Number 202 Extract, a DA Form 20 (Enlisted Qualification Record), a DA Form 8-118 (Medical Board Proceedings), a DA Form 2496 (Disposition Form), a Standard Form 502 (Clinical Record), a Standard Form 88 (Report of Medical Examination), and a Certification of Military Service in support of this 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 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 military records show he enlisted in the Regular Army on 24 May 1972.  He did not complete basic training and was not awarded a military occupational specialty.  The highest pay grade held was private/E-1.

3.  A DA Form 2496, subject:  Request for Separation for the Convenience of the Government for Medical Reasons, dated 2 June 1972, shows the applicant requested a discharge from the service for the convenience of the government for medical reasons under the provisions of paragraph 5-9(a) of Army Regulation 635-200 (Personnel Separations – Enlisted Separations).

4.  A Standard Form 502, dated 12 June 1972, shows the applicant complained of right knee pain.  It shows x-rays revealed typical findings of an osteochondroma of the lower femur.  The document shows, "Diagnosis:  (2130) osteochondroma, right femur LD EPTS," indicating a line-of-duty (LOD) determination that his condition existed prior to service.  The finding was that he was unfit for induction according to Army Regulation 40-501 (Standards of Medical Fitness), paragraph 2-11, and recommended that he be separated from the service under the provisions of Army Regulation 635-200, paragraph 5-9.  The applicant was medically cleared for separation.

5.  On 30 June 1972, a medical evaluation board (MEBD) convened and after consideration of clinical records, laboratory findings, health records, and medical examinations, the MEBD found the applicant was medically fit for further military service in accordance with current medical fitness standards for retention.  The MEBD found the applicant's medical conditions and/or physical defects to be osteochondroma, right femur LD EPTS.  The MEBD also determined that the applicant's condition EPTS and it was neither aggravated by his military service nor determined to be in the LOD.  The MEBD recommended the applicant be separated from the service under provisions of Army Regulation 635-200, paragraph 5-9.

6.  On 30 June 1972, the MEBD approving authority approved the findings and recommendations of the MEBD and on 6 July 1972 the applicant indicated that he was informed of the approved findings and recommendations of the MEBD.  The statement, "I do not agree with the board's action and desire to appeal," is lined through and has the applicant's initials next it.

7.  On 17 July 1972, the applicant's discharge was directed in accordance with paragraph 5-9(a) of Army Regulation 635-200.  While there is no DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) available, Headquarters, U.S. Army Personnel Center, Special Orders Number 202 Extract, dated 20 July 1972, shows the applicant was discharged on 20 July 1972.

8.  Army Regulation 635-200 provides for the separation of enlisted personnel.  Paragraph 5-9 of the regulation, in effect at the time, provided that enlisted personnel who were not medically qualified under procurement medical fitness standards when accepted for induction or initial enlistment were discharged when a medical board established that a medical condition was identified by appropriate military medical authority within 4 months of the member's initial entrance on active duty.  Eligibility for discharge was governed by a medical board finding that the individual had a medical condition which would have permanently disqualified him from entry into military service had it been detected at that time and did not disqualify him from retention in military service under the provisions of chapter 3 (Retention Standards) of Army Regulation 40-501.

9.  As an exception, Army Regulation 635-200, paragraph 5-9(b), provided that an individual who was found to meet the requirements of paragraph 5-9(a), but who elected to complete the period of service for which enlisted, was not discharged under this paragraph.  Such member was required to sign a statement electing to complete his period of service, notwithstanding his eligibility for discharge under paragraph 5-9.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant contends his leg was broken and his shoulder injured when his bed was overturned by a drill sergeant and he then received no medical treatment for his injuries, he has not submitted evidence to support this contention.

2.  The evidence of record in this case shows that the applicant suffered a medical condition which was determined to have EPTS, was not aggravated by service, and was not incurred in the LOD.  The MEBD diagnosed him as unfit for enlistment and/or induction, but fit for retention.

3.  The MEBD considers the Soldier’s clinical records, laboratory findings, health records, and medical examinations, in order to reach a diagnosis that helps the MEBD determine if a Soldier is fit for duty, should be referred to a physical evaluation board, or make other disposition.  Furthermore, the evidence of record shows that the applicant indicated that he was informed of the approved findings and recommendations and that he agreed with the MEBD's action and did not choose to appeal.

4.  While the applicant had the option of requesting to complete his period of service, the evidence shows he voluntarily requested a discharge from the Army due to this EPTS condition and having met the criteria of paragraph 5-9(a) of Army Regulation 635-200 in effect at the time, the separation authority approved his discharge.  While there is no DD Form 214 available, it appears the applicant was discharged for an EPTS condition based on an MEBD recommendation.

5.  Since he had an EPTS medical condition which was disqualifying under procurement standards, he was properly discharged.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090012404



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ABCMR Record of Proceedings (cont)                                         AR20090012404



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