BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090012989 


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, a medical discharge.  Additionally, he requests correction of item 12b (Record of Service - Separation Date This Period) of his Army DD Form 214 (Certificate of Release or Discharge from Active Duty) to show 7 July 1982.

2.  The applicant states that his Army DD Form 214 does not reflect the fact that he was drilling with the 410th Evacuation Hospital before he reported to basic combat training (BCT) in May 1982.  The applicant offers that he started having problems with his feet as soon as BCT started and he was instructed to report to sick call.  The applicant adds that once the medical board decided to release him from the military, he remained at Fort Leonard Wood, MO for an additional three to four weeks before he was officially discharged on or about 7 July 1982.

3.  The applicant provides a copy of his Army DD Form 214 for the period ending 28 June 1972; a copy of his Army enlistment Standard Form (SF) 88 (Report of Medical Examination), dated 27 November 1981; a copy of his Army enlistment SF 93 (Report of Medical History), dated 27 November 1981; a copy of a DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings, dated     3 January 1982; Headquarters, U.S. Air Force (USAF) Recruiting Service, Randolph Air Force Base, TX, memorandum, subject: Determination of Enlistment Eligibility, dated December 1983, authorizing the applicant to enlist in the U.S. Army Reserve (USAR); and a USAF DD Form 214 for the period ending 30 March 1984 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 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.  On 27 November 1981, the applicant underwent a medical examination for enlistment into the USAR.  In the applicant's SF 93 he denies any medical problems.  His SF 88 notes that he had a bunion on his right foot.  However, he was "qualified" for enlistment.

3.  The applicant's DD Form 214 shows his component as USAR.  This form also shows the he entered active duty on 24 May 1982.

4.  The DA Form 4707, dated 3 June 1982, found that the applicant was medically unfit for enlistment in accordance with current medical fitness standards and in the opinion of the evaluating physicians, the condition existed prior to service (EPTS).  The board stated that the applicant's chief complaint was "painful feet."  In the "History of Present Illness" section, the board noted that the applicant started having pains three days after he arrived at Fort Leonard Wood with the onset of marching, long periods of standing, and coupled with the issue of combat boots.  The board stated that the applicant endured the pain for approximately one week until the pain became unbearable and he reported to sick call.  In the "Past Medical History" section, the applicant reported having bunions on both of his feet since the age of 14.  He also reported that he has had pain in his feet with any period of standing, walking, or running and that he did not participate in any athletic activities during junior high or high school because of painful feet.  Other sections of the DA Form 4707 include sections entitled "Physical Examination," "Laboratory Data," "Diagnoses," and "Recommendation." Although the copy of the DA Form 4707 provided by the applicant is mostly illegible, it appears in the board recommendation section that the board determined the applicant was unfit for induction into the service for an EPTS 


condition in accordance with Army Regulation 40-501 (Standards of Medical Fitness) and recommended his separation.

5.  The applicant acknowledged that he was informed of the medical findings.  He indicated that he understood that an Army legal advisor was available to him or that he may consult with civilian counsel at his own expense.  He also indicated 
that he understood that he may request to be discharged without delay or to request retention on active duty.  Having been duly advised, he concurred with the EPSBD proceedings and he requested to be discharged from the U.S. Army without delay.

6.  Item 12b of the applicant's Army DD Form 214 shows that he was separated on 28 June 1982.  This form also shows that the applicant was honorably discharged in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-7c(2) by reason of failure to meet procurement medical fitness standards.

7.  The applicant provided several documents showing that he was granted a waiver to enter the USAF.  He also provided a copy of his USAF DD Form 214 that shows he entered the USAF on 17 February 1984 and he was honorably discharged on 30 May 1984 "for disability which existed prior to service - no severance pay."

8.  Army Regulation 635-200 states, in pertinent part, that Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment or who became medically disqualified under these standards prior to entry on active duty (AD) or active duty for training (ADT) for initial entry training, may be separated.  Such conditions must be discovered during the first 6 months of AD.  Such findings will result in an EPSBD proceeding.  This board, which must be convened within the Soldier’s first 6 months of AD, takes the place of the notification procedures required for separation under this chapter.

9.  The same regulation states that medical proceedings, regardless of the date completed, must establish that a medical condition was identified by an appropriate military medical authority within 6 months of the Soldier’s initial entrance on AD for Regular Army (RA) or during active duty for training (ADT) for initial entry training for Army National Guard (ARNG) and USAR Soldiers that: (1) Would have permanently or temporarily disqualified the Soldier for entry into the military service or entry on AD or ADT for initial entry training had it been detected at that time; and (2) Does not disqualify the Soldier for retention in the military service per Army Regulation 40–501, chapter 3.

10.  Army Regulation 635-5 (Separation Documents) establishes standardized policy for preparing and distributing the DD Form 214.  The regulation states that 
the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  For item 12b, enter the date of separation this period (self-explanatory).

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows that the applicant underwent a medical examination prior to entry into the USAR that noted his bunion on his right foot.  As stated by the applicant and noted on the DA Form 4707, the applicant experienced pain in his feet since the age of 14, through junior high and high school, and shortly after his arrival at Fort Leonard Wood.

2.  The EPSBD was conducted and determined that the applicant’s medical condition existed prior to service.  Additionally, the applicant concurred with the board proceedings and requested to be discharged from the Army without delay. The applicant has presented no medical evidence to show that the EPSBD findings and recommendations were improper or unjust.  Consequently, there is no basis for granting the applicant's request for a medical discharge.

3.  The applicant states that his DD Form 214 does not reflect his drilling with the 410th Evacuation Hospital prior to reporting to BCT.  As stated in the regulation, the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty service.  The applicant's drill time during his Reserve service was in a non active duty status; therefore, it is not authorized to be placed on the DD Form 214.

4.  The applicant also maintains that he was separated from the Army on 7 July 1982 instead of 28 June 1982.  However, there is no evidence of record and the applicant did not provide any evidence to substantiate his claim.  Therefore, in the absence of evidence, such as a Leave and Earnings Statement and/or outprocessing documents, the presumption of regularity must be applied.

5.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that 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)                                         AR20090012989



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090012989



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1