IN THE CASE OF:	  

		BOARD DATE:	  15 July 2010

		DOCKET NUMBER:  AR20100000803 


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 that his records be corrected to change his honorable discharge to a medical discharge with service connected disability pay.  

2.  The applicant states, in effect, that he was drafted into the Army on 
21 October 1966 and discharged on 15 March 1967.  Prior to his induction, medical documentation containing his history of epilepsy was given to the Army's draft board and to the induction station.   He contends that despite not meeting the medical fitness standards in accordance with (IAW) Army Regulation 40-501 (Standards of Medical Fitness), paragraph 2-26, he was inducted into the Army.  

3.  The applicant contends that upon arriving at Fort Polk, Louisiana, on the night of 21 October 1966, all his medication was confiscated and never returned to him.  He was without the medication that controlled his grand mal epileptic seizures and this was only the beginning of the severe physical abuse and mental stress that he experienced during basic combat training (BCT) and advanced individual training (AIT).

4.  During BCT, he was required to throw live hand grenades which caused him an immeasurable amount of stress and anxiety.  He feared that he might have a seizure at the exact moment that he pulled the pin on the grenade.  He adds that there was also a considerable amount of live fire training in which he was fearful of firing his weapon and having a grand mal epileptic seizure with his finger on the trigger. 

5.  One of the most stressful events was the infiltration course which consisted of low crawling under machine gun fire.  He feared having a seizure and standing up with the possibility of being shot.  He contends that he still has nightmares and flashbacks of this particular event. 

6.  He states that all the training was dangerous when taking his medical condition into consideration.  With all the physical abuse and mental stress he experienced in the Army, there has been a creation of some lifetime problems such as problems sleeping, flashbacks, and the nightmares of handling live grenades and machine gun fire over his head.  He contends that his disability which existed prior to service (EPTS) was further aggravated by the Army.

7.   The applicant provides a copy of DA Form 1049 (Personnel Action), dated 
15 February 1967, a copy of Standard Form (SF) 502 (Narrative Summary) dated 3 March 1967 which contains his diagnosis and recommendation for separation, and a document which contains five responses.

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 show that on 1 August 1966 he underwent an initial pre-induction medical examination.  The SF 88 (Report of Medical Examination), dated 21 October 1966, shows that item 77 (Examinee) appears to have been initially marked "is not qualified" but the "x" in this box was crossed out and an "x" was placed in the "is qualified" box.  There also appears to be a comment which indicates "claims epileptic seizures age 16."  On 26 August 1966, a medical statement was prepared by a practicing medical doctor stating, "Mr. [name omitted] is a known epileptic, who has fairly frequent seizures."  

3.  On 22 September 1966, a report of medical examination was inspected at the New Orleans Armed Forces Examining and Entrance Station (AFEES).  Both the "fit" and "unfit" items were crossed out and the word "unfit" was written.  A note was also written in item 73 of the SF 88, which stated, "no verification of epilepsy" see medical doctor's note."   On 21 October 1966, the applicant's medical records were inspected again by the AFEES at New Orleans and he was found "fit" for military service and was processed for induction.   

4.  The applicant inducted into the United States Army and entered active duty on 21 October 1966.  He completed BCT but was unable to complete his AIT due to an EPTS physical disability.  

5.   A copy of a SF 600 (Chronological Record of Medical Care) shows that the applicant was evaluated at a dispensary at Fort Polk on 29 October 1966, during which he gave his history of epileptic seizures.  A second form shows that on     19 January 1967 and 1 February 1967 the applicant was hospitalized and treated for seizures.   

6.  On 15 February 1967, the applicant was recommended for separation under Army Regulation 635-40A (Physical Evaluation for Retention, Separation or Retirement for Physical Disability) by his chain of command because of epileptic seizures.  He was referred to the Neuropsychiatric Clinic on 20 February 1967 and placed on medication.  A recommendation to change his physical profile from P1 to P3 was made.  His profile was updated, accordingly.

7.  A DA Form 1049, dated 20 February 1967, shows that the applicant requested discharge for physical disability (EPTS).  This document shows that the applicant was notified based upon preliminary findings that he was considered unfit for retention because of his physical disability which was considered to have existed prior to 21 October 1966.  The applicant acknowledged that he was eligible to be considered by a Physical Evaluation Board (PEB) but waived his rights to a hearing and that he would be discharged for physical disability without disability retirement or disability severance pay.  

8.  On 2 March 1967, a Medical Evaluation Board (MEB) was initiated and approved on 9 March 1967.  The MEB found the applicant medically unfit for further military service in accordance with current medical fitness standards as a result of his epileptic seizure disorder (EPTS).  The details of the medical conditions and physical defects were "not" to be in the line of duty; was "not" aggravated by active duty; and did "not" cause an incident to the service. 

9.  The MEB proceedings show that the applicant did not present any views on his own behalf and did not desire to continue on active duty.  The board recommended that the applicant be separated from the military under the provisions of section VI, paragraph 33 of Army Regulation 635-40A and section XII (evaluation and separation of members for physical disability which existed prior to entry on active service and not aggravated by the Service), of Army Regulation 635-40B (Physical Evaluation for Retention, Retirement, or Separation).  

10.  On 14 March 1967, the applicant submitted an appeal to the commander of his AIT unit.  The appeal stated, "I would like to appeal the papers that I signed releasing the Army of all responsibilities of me.  By appealing these papers, I have a right to file a claim for my sickness that I think was aggravated by the Army."  

11.  A copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the applicant was honorably discharged on 
15 March 1967.  He completed 4 months and 25 days of active service.  Item 11c (Reason and Authority) contains the entry "Army Regulation 635-40A and Army Regulation 635-40B, "SPN" [Separation Program Number] 277 “Physical Disability by Medical Board.”

12.  A copy of a 1st endorsement, dated 30 October 1967, Headquarters, United States Army Recruiting Command, addressed to the Office of The Surgeon General (OTSG), states that they have reviewed the case file and concur that Mr. [name omitted] was erroneously inducted based on medical evidence available at that time of his induction.   

13.  A Reserve Components Personnel and Administration Center (RCPAC), letter, dated 28 November 1967, apparently responds to the request for appeal previously submitted by the applicant.  The letter states, in effect, that their records indicated that he was erroneously inducted into the Army despite acknowledgement from a medical doctor which stated he was a known epileptic.  Because he waived his right to have his case heard by a PEB and that he did not request a hearing from the same prior to his discharge, he would have to appeal to the ABCMR for correction of his records.  

14.  A DD Form 173 (Joint Messageform) was initiated from Commander, RCPAC to the Veterans Administration (VA) office on 29 May 1974, requesting the status of a claim filed on 7 July 1967 for a physical disability rating on the applicant.  No further information is available in the record and the applicant did not provide any.

15.  On 4 September 1974, the applicant appealed to the ABCMR.  On 8 October 1974, his request was denied on the basis of insufficient evidence presented to indicate a probable error or injustice. 

16.  Army Regulation 40-501 governs the medical fitness standards for enlistment, induction, and appointment; and the medical fitness standards for retention and separation, including retirement.  Chapter 3 pertains to medical fitness standards for retention and separation and gives the various medical conditions and physical defects which may render a Soldier unfit for further military service.  It states that Soldiers with conditions listed in that chapter who do not meet the required medical standards will be evaluated by an MEB and will be referred to a Physical Evaluation Board (PEB).  

17.  Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations), chapter 4, paragraph 4-8(e) states, in pertinent part, that if an EPTS condition was aggravated by military service, the finding will be "in line of duty."  If an EPTS condition is not aggravated by military service, the finding will be "not in line of duty."   Specific findings of natural progress of the pre-existing injury or disease based on well-established medical principles alone are enough to overcome the presumption of service aggravation.

18.  Army Regulation 635-40A, paragraph 33, in effect at the time, states that members of the Army ordered into the active military service for a period in excess of 30 days, and who are determined to be unfit by a medical board for retention on active duty by reason of physical or mental disqualifications which are not incurred or aggravated while entitled to receive basic pay, may request either discharge or relief from active duty or elect an appearance before a physical evaluation board.

19.  Army Regulation 635-40B, section XII, in effect at the time, provided for the evaluation and separation of members for physical disability which existed prior to entry on active service and not aggravated by the service.  It states, in pertinent part, that members may elect to apply to their immediate commanding officers for early separation provided a medical officer has determined that they are physically or mentally unfit for retention on active duty or that such unfitness is the result of a condition which was not incurred or aggravated during any period of active service. 

20.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

21.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), dated 8 February 2006, 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 Army Regulation 40-501, chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

22.  Army Regulation 635-40 states, in pertinent part, 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his honorable discharge should be changed to a medical discharge with service connected disability pay, and that his condition was further aggravation by the Army was carefully considered; however, it is not supported by the evidence provided.  

2.  The applicant acknowledged that he understood his rights which included consideration of his case by a PEB.  However, he elected not to exercise that right.  He also understood that he would be separated by reason of an EPTS physical disability.  A PEB can make recommendations to establish the eligibility of a Soldier to be separated or retired because of physical disability.  

3.  His records show he was discharged in accordance with the results and findings of the MEB on 15 March 1967.  The final results were that the applicant's medical condition existed prior to entrance on active service and that it was not further aggravated by his military service.  The note provided by his doctor prior to his entrance on active duty, states "he was a known epileptic, who has fairly frequent seizures."  The applicant has not provided any medical evidence, beyond his own assertions, that the frequency of his seizures increased as a result of his military service.  At this point in time, there is no way to determine if the frequency of his seizures increased as a result of his military service.

4.  The applicant applied to the ABCMR in 1974 and his case was denied due to insufficient evidence.  He had the opportunity to reapply to the ABCMR in a timely manner and present new and material evidence.  There is no record to indicate he reapplied to the Board prior to December 2009.  Unfortunately, more than 35 years later, that decision has affected the Army's ability to make an accurate determination for medical retirement.  In the absence of such evidence, there is no basis to grant the requested relief. 

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)                                         AR20100000803





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ABCMR Record of Proceedings (cont)                                         AR20100000803



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