IN THE CASE OF:	  

		BOARD DATE:	      6 January 2011

		DOCKET NUMBER:  AR20100017474 


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 amendment of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to change the narrative reason for separation from “Discharged because of not meeting medical fitness standards at the time of induction” to a “physical disability separation."

2.  He states the narrative reason for discharge on his DD Form 214 is not true.  He was in excellent health and had no prior injuries to his left ankle at the time of his entrance examination. 

3.  He provided a copy of his DD Form 214. 

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.  On 15 March 1971, a letter was sent to the Armed Forces Examining and Entrance Station (AFEES) from Dr. B_______, Orthopedic Surgery, Huntington Medical Building, Miami, FL.  This letter stated, in pertinent part, he injured his left ankle playing basketball, approximately 6 to 9 months prior.  The doctor examined his left ankle and noted no evidence of swelling or edema.  The range of motion was normal with no clinical evidence of instability.  

3.  His DD Form 47 (Record of Induction) shows he was inducted into the Army on 16 March 1971.  Section III (Medical Determination) shows a physical profile serial which does not indicate any limitations in his lower extremities.  

4.  His record contains a Selective Service System (SSS) Form 119 (Report of Information), dated 4 May 1971, which shows he complained of trouble with his left ankle.  He stated his ankle hurt when he stepped on it.  When he reported to Dr. B______ for an orthopedic consultation X-rays were taken of his knees, but he did not believe any were taken of his ankle.  The applicant stated he felt his ankle condition should have been considered again before he was inducted into the service.   

5.  Section VII (Determination at Induction Examination) of his DD Form 47 shows he was found acceptable for induction on 26 May 1971.  

6.  His military personnel records contain a DA Form 20 (Enlisted Qualification Record) which shows in item 38 (Record of Assignments), he entered Basic Combat Training on 14 June 1971 at Fort Jackson, SC.  

7.  A DA Form 2496 (Disposition Form) Request for Separation or Release from Active Duty under the provisions of paragraph 5-9, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), dated 21 July 1971, shows he voluntarily requested discharge for physical reasons which existed prior to his induction in the Army and entry on active duty.  He noted he had a history of an old fracture to his left ankle which was known to him approximately two years prior to his induction date.  

8.  His service record also contains a copy of a Standard Form (SF) 502 (Clinical Record – Narrative Summary), dated 27 July 1971.  This document shows he was determined to be physically unfit for induction or enlistment in the military service under the provisions of Army Regulation 40-501 (Standards of Medical Fitness) due to traumatic arthritis of the left ankle, secondary to fractures and sprains.  

9.  His service records contain an SF 88 (Report of Medical Examination), dated 21 July 1971.  The (Notes) section of this form references item 37 (Lower Extremities) reveals moderate swelling around the left ankle with limited range of motion.  Item 74 (Summary of Defects and Diagnoses) shows he had traumatic arthritis in his left ankle which was secondary to an old fracture and sprain.  The injury was noted to have existed prior to service.   

10.  Item 77 (Examinee) of his SF 88 shows he was not qualified for induction or enlistment under the provisions of paragraph 2-11a, Army Regulation 40-501.  

11.  A DA Form 8-118 (Medical Board Proceedings), dated 23 July 1971, shows a Medical Evaluation Board (MEB) diagnosed him with traumatic arthritis in his left ankle which was secondary to an old fracture and sprain.  The MEB noted his injury existed prior to service and it was determined not to be in the line of duty. 

12.  On 23 July 1971, he acknowledged he had been informed and agreed with the findings and recommendations of the board by authenticating the form.

13.  His DD Form 214 shows he was discharged, on 27 July 1971, under the provisions of Section III of Chapter 5 of Army Regulation 635200 by reason of not meeting medical fitness standards at the time of induction, and issued an Honorable Discharge Certificate.  He had served a total of 2 months and 2 days of net active service.

14.  Army Regulation 40-501 governs medical fitness standards, which include the medical fitness standards for enlistment, induction, and appointment.  Chapter 2 outlines physical standards for enlistment, appointment and induction and states, in pertinent part, that enlisted Soldiers identified within the first 6 months of active duty with a condition that existed prior to service that does not meet the standards must be evaluated by an MEB.  The Soldier will then be referred to a physical evaluation board (PEB) unless the Soldier waives his or her right to the PEB in accordance with Army Regulation 635-40.  

15.  Army Regulation 601-270 (Armed Forces Examining and Entrance Stations), in effect at the time, prescribed the primary functions of the AFEES.  Paragraph 69 contained guidance on the scope of the physical inspection.  It stated, in pertinent part, that applicants for enlistment or induction who had undergone a medical examination of the prescribed scope within 180 days prior to the induction processing and been found medically qualified would undergo a physical inspection.  The examining physician would review the previous medical examination reports and any accompanying additional documents and discuss with the examinee any intervening injuries and illnesses, or any other health problems not a matter of record.  

16.  Army Regulation 635-40 (Army Physical Disability Evaluation System (PDES)) 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, this regulation provides for disposition of the Soldier according to applicable laws and regulations.   

17.  Paragraph 3-2 of the PDES regulation identifies presumptions that apply to physical disability evaluation and states, in pertinent part, that there is a presumption that a Soldier was in sound physical and mental condition upon entering active service except for physical disabilities noted and recorded at the time of entry.  This presumption may be overcome by a preponderance of the evidence that a disqualifying condition existed prior to service.  

18.  Chapter 9 of the PDES regulation, in effect at the time of the applicant’s discharge, provided the procedures for the expeditious discharge for disabilities existing prior to service.  It provided that when an enlisted member on active duty was believed to be incapable of performing his duties with reasonable effectiveness because of a disability, which was believed not to have been aggravated during any period of active service, the commander concerned would initiate action to request a physical examination.  The medical examination would be forwarded to a medical board for use in consideration of the case and a medical board evaluation would be accomplished.  It further stated that when the medical board recommended a member be separated because of medical unfitness which existed prior to entry into military service or which was incurred when the member was not entitled to basic pay and which had not been aggravated by such service, the medical treatment facility commander would cause the member to be offered the opportunity for expeditious separation, if he was otherwise eligible.  

19.  Chapter 9 of the same regulation also identified counseling and processing requirements and stated, in pertinent part, that the medical treatment facility commander would refer the case to the PEB Liaison Officer (PEBLO) for explanation of benefits, advice on his rights, and the offer of an opportunity for expeditious discharge, if the member agreed with the existed prior to service aspects of his disability.  It further stated, in pertinent part, that the PEBLO was required to advise the member of his right to demand a full and fair hearing before the PEB.  

20.  Army Regulation 635-200, in effect at that time, provides the authority and general provisions for separation of enlisted personnel upon expiration of term of service (ETS), separation of enlisted personnel prior to ETS, provides the procedures for implementation of laws and policies governing voluntary retirement of enlisted personnel of the Regular Army by reason of length of service, and the criteria governing the issuance of honorable, general, and undesirable discharge certificates.

21.  Paragraph 5-9 of Army Regulation 635-200 states that Soldiers who were not medically qualified under the procurement medical fitness standards when accepted for induction or initial enlistment will be discharged when a medical board, regardless of the date completed, establishes that a medical condition was identified by appropriate military medical authority within four months of the Soldier's initial entrance on active duty or active duty for training under the Reserve Enlistment Program of 1963.

DISCUSSION AND CONCLUSIONS:

1.  Evidence shows, by his own admission, he suffered an injury to his left ankle approximately two years prior to his entry on active duty.  The available records show he was examined by an orthopedic surgeon prior to his induction and was determined to be fit for entry on active duty.  

2.  After entering basic combat training on 14 June 1971, he began experiencing problems with his left ankle.  As a result, he voluntarily requested separation for physical reason which existed prior to his induction in the Army.  

3.  He was given a physical examination and his medical records went before an MEB.  The MEB recommended he be separated from military service due to traumatic arthritis in his left ankle which was secondary to an old fracture and sprain.  The MEB noted his injury existed prior to service and it was determined not to be in the line of duty.  The applicant concurred with the findings and recommendation of the MEB.

4.  His separation processing was accomplished in accordance with the applicable regulation in effect at the time, all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the discharge process.  

5.  In view of the foregoing, he was properly separated under the provisions of law and regulation that was in effect at that time.  He has not submitted sufficient evidence or a convincing argument to show the narrative reason for discharge incorrect or improper.  Therefore, 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)                                         AR20100017474





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ABCMR Record of Proceedings (cont)                                         AR20100017474



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