IN THE CASE OF:	  

		BOARD DATE:	  17 February 2011

		DOCKET NUMBER:  AR20100015658 


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 his honorable discharge be changed to show he was separated due to medical reasons.

2.  The applicant states his eye injury occurred during a field artillery training exercise at Fort Sill, OK.  Therefore, he believes his eye injury occurred “on the job” and he should have been medically separated.  He states he must have a medical separation to qualify for Department of Veterans Affairs (VA) employment benefits.

3.  The applicant provides the following documentary evidence in support of his application:

	a.  a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with a separation date of 10 July 1970;

	b.  a Standard Form 86 (Report of Medical Examination), dated 8 June 1970;

   c.  a DA Form 8-118 (Medical Board Proceedings [MEB]), dated 23 June 1970; and 
   
   d.  a DA Form 2496-1 (Disposition Form), dated 8 June 1970.

	


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 was inducted into the Army of the United States on 25 March 1970.  He completed basic training.  

3.  On 1 June 1970, he entered advanced individual training at Fort Sill, OK to train as a field artilleryman.

4.  The applicant’s medical service records are not available for the Board’s review.  However, he provided records of his medical examination and MEB for the Board’s consideration.

5.  On 8 June 1970, he received a medical examination in preparation for an MEB.  He had requested medical treatment for blurred vision.  In the narrative summary, it states: 

He had a history of right brow ache, discomfort around the right eye, blurring of vision off and on for a few minutes occurring most recently with exercise on 4 June 1970, repeated on 5 June 1970 . . .  on 6 June 1970, during exercise he had a similar episode in which his vision became blurred and became yellow then black for a few minutes.  

6.  The medical examiner’s diagnosis shows the applicant had a cyst in his right eye that was determined to have existed prior to the applicant's entrance into the service.  This medical condition was found not to be in the line of duty.  Therefore, the medical examiner recommend the applicant be separated under the provisions of paragraph 5-9, Army Regulation 635-200, because he did not meet procurement medical fitness standards under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), paragraph 2-12c(2).  The medical examiner also concluded the applicant met medical fitness standards for retention under the provisions of Army Regulation 40-501, chapter 3. 

7.  On 23 June 1970, an MEB found the applicant’s medical condition, a macular cyst on his right eye, existed prior to service and this condition was found not to be in the line of duty and it was not aggravated by his military service.  The MEB recommended separation under the provisions of Army Regulation 635-200, paragraph 5-9.

8.  The applicant requested a discharge from the military service under the provisions of Army Regulation 635-200, paragraph 5-9 because he did not meet the medical fitness standards at the time of his induction as prescribed by Army Regulation 40-501, chapter 2.  He indicated by his signature on the DA Form 2496-1 that he understood the reason for his separation and that it had been explained to him.

9.  On 6 July 1970, the separation approval authority approved the applicant’s separation.

10.  Accordingly, on 10 July 1970 the applicant was honorably discharged.  He was issued a DD Form 214 that shows the reason for his discharge was in accordance with Army Regulation 635-200, paragraph 5-9.  His net active service was 3 months and 15 days.  

11.  References:

	a.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-9 provides 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 entrance on active duty or active duty training or initial entry training will be separated.  A medical proceeding, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within six months of the Soldier’s initial entrance on active duty, that the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at that time, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of chapter 3, Army Regulation 40-501 (Standards of Medical Fitness).  After this finding, a Soldier will submit a request for discharge to his commander within 4 months from the date of initial entry onto active duty.  

	b.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating.  Chapter 4 of this regulation contains guidance on processing through the PDES, which includes the convening of a MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  It also investigates the nature, cause, degree of severity, and probable permanency of the disability of soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

	c.  Army Regulation 635-40 states, under the laws governing the Army Physical Disability Evaluation system, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be changed to a medical separation so he can get Veterans’ benefits and because he believes his blurred vision occurred while "on the job" during a field training exercise. 

2.  The evidence of record shows that during the applicant's advanced individual training and prior to 4 months of active service, an MEB convened and recommended separation due to a macular cyst on his right eye.  This macular cyst was medically determined to have existed prior to his induction into the military service and it was not found to be in the line of duty.  The MEB did find the applicant medically fit for retention.  

3.  The applicant voluntarily requested separation based on the medical examiner’s findings and the MEB.  Since the applicant's medical condition was not medically unfitting for retention and found to be not in the line of duty, but existed prior to his entry into the service, there was no basis for processing him through the PDES.   Without processing through the PDES, there can be no finding of a medical separation or discharge under the PDES.  

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.  In addition, he failed to provide evidence to show he received his macular cyst while "on the job" during field artillery training exercise(s). 

5.  The Army Board for Correction of Military Records does not grant applicants’ requests solely based on establishing their eligibility for Veterans’ benefits.

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)                                         AR20100015658



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ABCMR Record of Proceedings (cont)                                         AR20100015658



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