IN THE CASE OF:	  

		BOARD DATE:	  1 February 2011

		DOCKET NUMBER:  AR20100018867 


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 change of the narrative reason for his discharge on his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he met procurement medical fitness standards and his military service worsened his pre-existing medical condition.

2.  The applicant states he was never referred to a Medical Review Board and he did not receive legal counsel prior to his discharge.  He states he was qualified for enlistment with a condition that existed prior to service (surgery on his foot).  He entered active service on 1 March 1988 and on 23 May 1988 he received a podiatry consultation for foot pain.  He was recommended for an expeditious discharge.  He states at no time was he advised of his rights or evaluated by a Medical Review Board.

3.  The applicant provides copies of:

* his DD Form 214 with a separation date of 29 June 1988
* 13 pages from his service medical records

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 enlisted in the Regular Army on 1 March 1988 for a period of
2 years.  He completed basic combat training.

3.  The applicant's Standard Form 88 (Report of Medical History), completed on
6 January 1988, noted that he had surgery on his foot in 1979 to correct a bone and that it was completely healed.

4.  The applicant's service medical records show he was treated for pain in his right foot on 31 March, 4 April, 16 May, and 10 June 1988.

5.  On 10 June 1988, an Entrance Physical Standards Board (EPSBD) found that the applicant had right mid-foot surgery due to a congenital deformity at age 13.  Since that time he has had intermittent pain.  During the third or fourth week of basic training he developed right foot pain and he was placed on a limiting profile.  On 16 May 1988, he was seen at sick call for recurrent right foot pain and he was referred to Podiatry Services.  He was evaluated on 23 May 1988 and found to be status post-right metatarsal osteotormies for metatorsic adductus, existed prior to service, unfit for duty.  

6.  The EPSBD found the applicant did not meet medical fitness standards for enlistment under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 2, paragraph 2-23d, and that his condition existed prior to service.  The EPSBD further found the applicant did meet retention standards under the provisions of Army Regulation 40-501, chapter 3 and recommended his separation from the military service under Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-11 (Separation of personnel who did not meet procurement medical fitness standards).

7.  On 14 June 1988, the applicant acknowledged that he was informed of the findings of the EPSBD and advised that legal counsel from an Army attorney was available to him or he may consult a civilian attorney at his own expense.  He 

was further advised that he may request to be discharged from the Army without delay or he may request retention on active duty.  The applicant concurred with the proceedings and requested to be discharged from the Army without delay.

8.  On 29 June 1988, the applicant was honorably discharged accordingly by reason of failing to meet procurement medical fitness standards with no disability. He had completed 3 months and 29 days of net active service this period.

9.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-11 specifically 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.  Such conditions must be discovered during the first 
6 months of active duty and will result in an EPSBD proceeding.

10.  A medical proceeding, regardless of the date completed, must establish that: 

* a medical condition was identified by appropriate medical authority within 6 months of the Soldier’s initial entrance on active duty
* the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at that time
* the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501, chapter 3

DISCUSSION AND CONCLUSIONS:

1.  The applicant completed basic training and he was treated for his right foot pain on four occasions during his service.

2.  A medical condition discovered during the first 6 months of service is referred to an EPSBD.  An EPSBD established that the applicant's medical condition:

* was identified by appropriate medical authority within 6 months of his initial entrance on active duty
* would have permanently or temporarily disqualified him for entry into the military service had it been detected at that time
* did not disqualify him from retention in the service

3.  The applicant was advised that legal counsel from an Army attorney was available to him or he may consult a civilian attorney at his own expense.  He was further advised that he may request to be discharged from the Army without delay or he may request retention on active duty.  

4.  The applicant concurred with the EPSBD proceedings and he requested discharge from the Army without delay.  Therefore, the applicant's administrative separation was accomplished in compliance with applicable regulation with no indication of procedural errors that would tend to jeopardize his rights.

5.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100018867



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ABCMR Record of Proceedings (cont)                                         AR20100018867



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