IN THE CASE OF:	  

		BOARD DATE:	  30 March 2010

		DOCKET NUMBER:  AR20090016308 


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 item 11c (Reason and Authority) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 13 August 1971, be corrected.

2.  The applicant states his DD Form 214 shows he was separated based on a medical condition that existed prior to service (EPTS) and this is reflected in item 11c of his DD Form 214.  He claims item 11c should reflect he was separated by reason of physical disability.  He states he entered military service when he was only 19 years old and could barely read.  He claims the injury he sustained prior to his entry into military service was to his ankles and not the bilateral knee condition that resulted in his discharge.  He claims to have first injured his knee while firing at the weapons demonstration during advanced individual training.  He states the turret on a 106-millimeter recoilless rifle came loose and he lost his balance and fell off the side of the jeep.  This caused his right leg to get caught on the gunner's seat and the barrel of his weapon landed on his left knee.  He indicates he was treated for this injury at the hospital at Fort Jackson, South Carolina.

3.  The applicant claims his knee condition occurred while in service, but at the time his wife had left him and abandoned his 1-year old son, so because it would result in his going home, he signed the paperwork indicating his knee injury was an EPTS condition.  He states he would have signed anything to get back to his son out of fear his son would be parentless.

4.  The applicant provides a DD Form 47 (Record of Induction), Standard Forms 88 (Reports of Medical Examination), Standard Forms 89 (Reports of Medical History), DD Form 214, and Standard Form 502 (Narrative Summary) to support 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.  The applicant's record contains a DD Form 47.  This document shows he was inducted into the Army of the United States and entered active duty on 28 January 1971.  Section IIa (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) contains an entry confirming the applicant sustained injuries to his ankles as a result of an accident and a medical report documenting this condition was attached.

3.  The applicant's official military personnel file (OMPF) contains a medical report indicating the applicant was struck by a car and knocked to the ground on 1 May 1967 while riding a motor scooter.  It further shows he was diagnosed with multiple contusions, abrasions, subluxation left ankle, and tear of lateral collateral ligament.

4.  A DA Form 3349 (Medical Condition - Physical Profile Record), dated 20 May 1971, in his record confirms he was medically qualified for duty with permanent assignment limitations based on his mass (cystic) left knee and that he had a PULHES of 112111.

5.  A Standard Form 502 in his record shows the applicant was admitted to the hospital at Fort Jackson, South Carolina, on 9 August 1971, for the purpose of medical board processing.  It also contains a medical history statement from the applicant confirming a history of problems with his right knee.  This included recurrent swelling and multiple reoccurrences of knee injuries.

6.  On 9 August 1971, a Standard Form 88 completed during the medical board process shows the applicant was diagnosed with a tear, old medial meniscus secondary to numerous injuries to the left knee with Baker's cyst, and patella crepitus, details not specified.  It further shows he was found not qualified for retention under the provisions of paragraph 9-5, Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

7.  On 11 August 1971, a medical evaluation board (MEBD) held at Fort Jackson, South Carolina, found the applicant's chronic pain in his knee joint was an EPTS condition and recommended he be separated from the service under the provisions of paragraph 9-5, Army Regulation 635-40.  The applicant concurred with the MEBD findings and recommendations, to include the EPTS discharge recommendation.

8.  On 13 August 1971, the applicant was honorably discharged.  The DD Form 214 he was issued at that time shows he was separated under the provisions of paragraph 9, Army Regulation 635-40, by reason of EPTS physical disability.  It further shows he completed 6 months and 16 days of creditable active military service and was not entitled to disability severance pay.

9.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and sets forth the responsibilities and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.

10.  Chapter 9 of Army Regulation 635-40, in effect at the time, provided for the expeditious discharge of enlisted personnel who were unfit for retention on active duty by reason of physical disability which was neither incurred nor aggravated during any period in which the member was entitled to basic pay.  Paragraph 
9-3(d) stated that when a medical board recommended a member be separated because of medical unfitness that existed prior to entry into military service or incurred when the member was not entitled to basic pay and was not been aggravated by service, the medical treatment facility commander will cause the member to be offered the opportunity for expeditious separation, if otherwise eligible.  Paragraph 9-5 stated that after a member was informed of the medical board determinations and if the member desired an expeditious discharge, he or she would be provided assistance in preparing the application.

11.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Chapter 2 of the regulation contains item-by-item instructions for preparation of the DD Form 214.  The instructions for item 11c state, in pertinent part, that this is based on regulatory or other authority for separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his knee condition was not an EPTS condition and was in fact incurred during military service was carefully considered.  But the evidence is not sufficient to support this claim.

2.  The evidence of record confirms the applicant's knee condition and the existing medical records and the applicant's own testimony and statements of medical history were evaluated during his MEBD process.  The MEBD determined the applicant's knee condition was an EPTS condition and recommended the applicant be separated on that basis.

3.  The evidence of record confirms the applicant was properly processed through the PDES in accordance with the applicable laws and regulations.  The evidence is not sufficiently compelling to change the medical findings and recommendations properly arrived at by the MEBD at the time of the applicant's PDES processing.

4.  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)                                         AR20090016308



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ABCMR Record of Proceedings (cont)                                         AR20090016308



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