IN THE CASE OF:	  

		BOARD DATE:	  17 February 2010

		DOCKET NUMBER:  AR20090014208 


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, correction of his records to show he was medically discharged.  

2.  The applicant states, in effect, that he acknowledges his medical condition existed prior to his entry into military service.  He also states that:

	a.  he attempted to explain his medical condition at the time he was drafted; however, he was told his condition did not exempt him from military service.

   b.  the demands of basic training exacerbated his medical condition.  He also states his feet and ankles were bruised and swollen, this resulted in him going to sick call nearly every other day.  He adds that he also contracted a serious contagious disease (hepatitis), which remains a current medical concern.

	c.  upon completion of basic training, he was assigned to Fort Hood, Texas, for advanced individual training.

	d.  his mother sought the assistance of Senator Hiram L. F___ concerning his medical condition.  He adds that he was subsequently transferred to Schofield Barracks, Hawaii, for discharge.

	e.  his medical condition was not discussed with him prior to his discharge.  He also states he was not notified that he could apply for any type of benefits and his family did not share any information they may have known.

	f.  he applied for a Department of Veterans Affairs (VA) mortgage and was informed that a VA mortgage was the only benefit he qualified for since he did not serve in the U.S. Armed Forces for 24 months.

   g.  he continued to experience physical pain after he was discharged, the pain continued to increase in intensity, and he was prescribed narcotics to manage the pain.

   h.  the applicant's voidance of induction suggests that he never served in the U.S. Army, although his character of service was honorable.  He adds that a medical discharge may qualify him for benefits.

3.  The applicant provides, in support of his application, a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), four letters, a VA Certificate of Eligibility, and three medical documents.

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.  A Headquarters, U.S. Army Tripler General Hospital (Hawaii), letter, dated
1 March 1967, to the Local Draft Board in Honolulu, Hawaii, shows the applicant had been treated twice at that medical facility for acute low back strains.  It also shows that on x-ray examination of the applicant's spine, it was determined he had a spina bifida occulta of the first sacral vertebra and, to the best of the medical doctor's knowledge, this congenital abnormality is asymptomatic.

3.  A Standard Form (SF) 89 (Report of Medical History), dated 19 March 1968, completed during the applicant's pre-induction medical examination, shows in item 27 (Have You Been Unable To Hold A Job Because Of:), block d (Other Medical Reasons), the applicant placed a checkmark in the "Yes" column and entered "Bad Back."

4.  An SF 88 (Report of Medical Examination), dated 19 March 1968, completed during the applicant's pre-induction medical examination, shows in the Clinical Evaluation section, item 38 (Spine, Other Musculoskeletal), that the examining medical official placed a checkmark in the "Normal" column.  Item 77 (Examinee) shows the examining physician found the applicant qualified for military service.

5.  A DD Form 47 (Record of Induction) shows the applicant was inducted into the U.S. Army on 22 April 1968:

	a.  section II (Local Board Medical Interview), item 16 (Physical Defects), block a (List all defects and diseases claimed by the registrant and any defects or diseases which the registrant may have, and which are known to the local board) shows the entry "Back strains -- doctor's letter attached."

	b.  item 17 (Statement of Local Board Medical Advisor), Findings, shows an "x" was placed in block a (Registrant does not have disqualifying defect(s) claimed).  This item also contains the entry "Section XVIII, 2-36, c. Spina bifida occulta, however, affidavit is not clear as to restriction of function.  Refer for
re-examination.  (P.H. L_________, M.D. [Medical Doctor]." 

6.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

   a.  item 22 (Military Occupational Specialties (MOS)) he was awarded MOS 17B (Field Artillery Radar Crewman); and in

   b.  item 38 (Record of Assignments), in pertinent part, the entry "Released from Military Control by virtue of a voidance of induction Para[graph] 5-9.1, AR 635-200, SPN 376, HHB Div Arty 2d AD [Headquarters and Headquarters Battery, Division Artillery, 2nd Armored Division]."

7.  An SF 513 (Consultation Sheet), dated 27 September 1968, shows that based on a Congressional inquiry, the Surgeon, 2nd Armored Division, requested evaluation of the applicant based on complaints of back pain and alleged rheumatic fever.  This document also shows there was no evidence of rheumatic heart disease found; however, the applicant had a condition that existed prior to service, which was asymptomatic prior to induction.  The condition was identified as bilateral spondylolysis of L-5, which would have made the applicant unfit for induction under the provisions of Army Regulation 40-501 (Physical Evaluation for Retention, Retirement, or Separation), Chapter 2-36h.  This document also shows the entry "Void induction UP [under the provisions of] Army Regulation 635-200 [Personnel Separations - Enlisted Personnel], paragraph 5-9.1."

8.  An SF 88, dated 9 October 1968, completed during the applicant's medical examination shows in the Clinical Evaluation section, item 38, that the examining physician placed an "x" in the "Abnormal" column and the entry "#38.  Bilateral spondylolysis of L-5."  Item 77 shows the examining physician indicated the applicant qualified for "void induction UP paragraph 5-9.1, Army Regulation
635-200."  The SF 88 also shows that the examining physician and approving authority each placed their signature on the document.

9.  Headquarters, U.S. Army Personnel Center, Hawaii, Special Orders Number 236, dated 4 December 1968, as amended by Special Orders Number 237, dated 5 December 1968, show the applicant was released from custody and control of the Army by virtue of a void enlistment, effective 4 December 1968.

10.  A DD Form 214 shows the applicant was released from military control by reason of a voidance of induction on 4 December 1968 under the provisions of Army Regulation 635-200 with Separation Program Number (SPN) 376 and his service was characterized as honorable.  At the time he had completed 7 months and 13 days of net service.

11.  In support of his application, the applicant provides copies of the following documents:

   a.  two letters from Senator Hiram L. F___ to the applicant's mother that pertain to the Army's response to her inquiry regarding the applicant's physical condition.

	b.  a letter with typed letterhead showing "Department of the Army, Fort Hood, Texas 76546."  The letter is undated and shows it is in response to Senator F___'s inquiry of 26 September 1968.  It states that upon completion of a physical examination, the applicant was found to be suffering from spondylolysis (decomposition) of the L-5 vertebra, bilateral.  It also states that this condition existed prior to the applicant's induction into the service and that under current regulations his induction is void.  It further states the applicant was suffering from hepatitis and was in Darnall Army Hospital at Fort Hood at the time, and that current regulations do not permit release of personnel suffering from a serious contagious disease until the individual has recovered.  The letter states, "[t]he length of time it will take [the applicant] to recuperate cannot be readily determined, but upon his recovery, necessary actions will be taken to medically discharge him."  The letter is not signed, but shows the signature block of Leonard C. S___, Major General, U.S. Army, Commanding.
   
   
   c.  Department of the Army, Headquarters, 2nd Armored Division, Fort Hood, Texas, letter, dated 12 November 1968, issued under the signature of Major General S___ in response to the applicant's mother's letter, dated 1 November 1968.  It shows that a recent medical examination of the applicant indicated that the difficulties which he experiences with his back existed before his induction and, under [then] current regulations, the applicant's induction into the service is void.  However, the commanding general added that regulations do not permit a Soldier who is suffering from a contagious disease to be released from military service until his condition has been remedied, and the applicant could not be separated until he recovered from his attack of hepatitis.  The letter also states, "[a]t that time, he will receive an Honorable Discharge."

   d.  a VA Certificate of Eligibility, dated 21 May 1987, that shows the applicant was eligible for loan guaranty benefits.
   
   e.  three medical documents, dated 19 February 2008 and 4 July 2009, that show the applicant's blood specimen tested positive for Hepatitis C virus and that he was prescribed Hydrocodone/Apap and Oramorph SR. 
   
12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 5 (Separation for Convenience of the Government), paragraph 5-9.1, provided the policy and the procedures for inductees who did not meet the medical fitness standards at time of induction.  This paragraph also provides:

   a.  when an individual claims erroneous induction or it is clearly indicated that an individual did not meet medical fitness standards for induction, he will be examined by a physician who will determine whether the individual met the medical fitness standards for induction and whether he now meets the standards for retention.  The examining physician will report his findings on SF 88 with an appropriate recommendation for disposition in item 77.  The medical treatment facility commander will indicate final approval of the recommended disposition by affixing his signature in item 82 of the SF 88.

   b.  individuals whose inductions are void will be released from the custody and control of the Army by special orders.  The discharge authority will not issue a discharge certificate or DD Form 214.  An entry will be made in item 38 of the DA Form 20 showing "Released from military control by virtue of a void induction (special order number, SPN, and issuing headquarters)."


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his release from custody and control of the Army by virtue of the voidance of induction should be changed to show he was medically discharged because he was told his medical condition that existed prior to induction did not exempt him from military service.  He also contends that his medical condition was not discussed with him prior to discharge, and the voidance of induction suggests that he never served in the U.S. Army.  A medical discharge may qualify him for benefits.

2.  Records show that more than one year prior to the applicant's induction physical, he was treated twice for acute low back strains at the U.S. Army Tripler General Hospital, Hawaii.  Records also show that, at that time, he had a spina bifida occulta of the first sacral vertebra.

3.  Records show the local draft board was aware of the applicant's back strains and spina bifida occulta, which was asymptomatic prior to his induction, and it was not then clear as to restriction of function.  Records also show the applicant was found qualified for military service.

4.  Regulations state that when an individual claims erroneous induction or it is clearly indicated that an individual did not meet medical fitness standards for induction, he will be examined by a physician who will determine whether the individual met the medical fitness standards for induction and whether he meets the standards for retention.

5.  In response to a Congressional inquiry on behalf of the applicant by his mother, a physical examination of the applicant was completed:

   a.  records show the applicant had a medical evaluation on 27 September 1968 and on 9 October 1968 (on both occasions) his medical condition that existed prior to service was identified by the examining physician as bilateral spondylolysis of L-5, which would have made the applicant unfit for induction.
  
	b.  it is reasonable to conclude that on each of these occasions the examining physician would have discussed this medical condition with the applicant at that time.  Therefore, the applicant's contention that his medical condition was not discussed with him prior to his release from custody and control of the Army is not convincing and is not supported by the evidence of record.



6.  Records confirm the applicant's release from custody and control of the Army based on inductees who did not meet the medical fitness standards at the time of induction was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. Therefore, considering all the facts of this case, the applicant is not entitled to a medical discharge.

7.  It is noted in the letters written to the senator and to the applicant's mother the commanding general confirmed the applicant's induction into the service was void.  It is also noted he incorrectly stated that the applicant would be medically discharged.  While this statement may have conveyed to the applicant's mother (and the applicant) an erroneous message, it is deemed harmless because the applicant's release from custody and control of the Army was proper and correct and the commanding general had previously correctly stated that the applicant's induction was void.

8.  The evidence of record shows the applicant was erroneously issued a
DD Form 214 upon his release from custody and control of the Army for a "Voidance of Induction."  However, no action will be taken by this Board to void the erroneously issued DD Form 214.

9.  As a matter of information, the ABCMR does not change the separation of a former member (e.g., to a medical discharge) solely to enhance his or her eligibility for veteran's benefits.

10.  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.  Therefore, in view of all 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)                                         AR20090014208



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ABCMR Record of Proceedings (cont)                                         AR20090014208



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