IN THE CASE OF:	  

		BOARD DATE:	  9 September 2010

		DOCKET NUMBER:  AR20100009957 


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 the authority and reason for his discharge listed in item 11c (Reason and Authority) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show he was medically discharged.

2.  The applicant states his DD Form 214 contains an incorrect reason and authority for discharge.  He states he was medically discharged and not discharged by reason of hardship.

3.  The applicant provides a Standard Form 502 (Clinical Record - Narrative Summary) and DD Form 214 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.  The applicant's record shows he enlisted in the Regular Army and entered active duty on 18 September 1972.  He was trained in and awarded military occupational specialty 11M (Indirect Fire Crewman).

3.  On 23 January 1973, a medical evaluation board (MEB) determined the applicant suffered from atopic dermatitis, a disqualifying physical disability that rendered him medically unfit for retention.  The MEB further found the disqualifying medical condition existed prior to service (EPTS) and recommended that the applicant be discharged under the provisions of paragraph 9-5, Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), by reason of an EPTS physical disability.

4.  The applicant concurred with the findings and recommendation of the MEB and requested to be discharged by reason of an EPTS physical disability.  He also elected not to exercise his right to be processed through the Army Physical Disability Evaluation System (PDES) and acknowledged his entitlement to Veterans Administration benefits would be determined by the Veterans Administration.

5.  On 23 January 1973, the findings and recommendations of the MEB were approved by the appropriate medical/separation authority.

6.  On 30 January 1973, the applicant was honorably discharged after completing 4 months and 13 days of active military service.  The DD Form 214 he was issued at the time erroneously listed the authority and reason for his discharge as "Chapter 6, Army Regulation 635-200 SPN 227 Hardship" in item 11c.

7.  Army Regulation 635-40 establishes the Army PDES.  It 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 or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, it provides for disposition of the Soldier according to applicable laws and regulations.  Chapter 9 of the version of the regulation in effect at the time provided the authority to separate enlisted members for non-service aggravated EPTS conditions when the member waived PDES evaluation and requested discharge.

8.  Army Regulation 635-5 (Separation Documents) in effect at the time prescribed the separation documents issued to Soldiers upon separation from the Army.  Chapter 2 provided instructions for preparation of the DD Form 214 and paragraph 2-9 provided the instructions for item 11c.  It stated the authority for transfer or discharge would be entered by reference to the regulatory authority followed by the separation program number (SPN) and descriptive reason for transfer or discharge.

9.  Appendix A of Army Regulation 635-5 provided the SPN to be assigned based the regulatory authority and descriptive reason for separation.  It stated that SPN 277 would be assigned to members separated under the provisions of chapter 9, Army Regulation 635-40, by reason of an EPTS physical disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the authority and reason for his discharge listed in item 11c of his DD Form 214 is in error has been carefully considered and found to have merit.

2.  The evidence of record confirms the applicant was properly processed through an MEB.  The MEB determined he was unfit for retention based on a physically-disabling EPTS condition and recommended the applicant's separation under the provisions of chapter 9, Army Regulation 635-40.  The record further confirms the applicant concurred with the findings and recommendations of the MEB and requested discharge after waiving his right to be processed through the PDES.  It also shows the proper medical/separation authority approved his discharge under the provisions of chapter 9, Army Regulation 635-40, by reason of an EPTS physical disability.

3.  Under the regulatory policy in effect at the time and based on the applicant's approved separation by the MEB, item 11c of his DD Form 214 should have contained the entry "Chapter 9, Army Regulation 635-40, SPN 277, EPTS Physical Disability."  As a result, it would be appropriate to correct this item at this time.

BOARD VOTE:

____X____  ___X_____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 by deleting the current entry in item 11c and replacing it with the entry "Chapter 9, Army Regulation 635-40, SPN 277, EPTS Physical Disability."



      ___________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)                                         AR20100009957



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ABCMR Record of Proceedings (cont)                                         AR20100009957



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