IN THE CASE OF:	  

		BOARD DATE:	  27 January 2011

		DOCKET NUMBER:  AR20100019111 


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, in effect, that the character of service and the narrative reason for separation on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show he was discharged due to medical reasons that were service connected.

2.  The applicant states he "filed for an injury" that occurred at Fort Benning, Georgia that was service connected.  He states, instead of the problem/injury being fixed, he was quickly sent home.  

3.  The applicant provides a DD Form 214, DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings), and a Board of Veterans' Appeals Record of Proceedings that established his entitlement to service connection for residuals of left inguinal hernia.

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 U.S. Army Reserve on 21 May 2002 and entered initial active duty for training on 12 February 2003.

3.  On 23 April 2003, an EPSBD determined he met retention standards but did not meet medical procurement standards for enlistment due to chronic recurring abdominal and groin pain following left inguinal hernia repair prior to enlistment.  The board also determined that the condition existed prior to service.

4.  On 28 April 2003, he concurred with the EPSBD proceedings and requested discharge from the Army without delay.

5.  On 16 May 2003, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations- Active Duty Enlisted Administrative Separations), paragraph 5-11, for failure to meet procurement medical fitness standards.  He had completed 3 months and 5 days of creditable active duty service.  His service was uncharacterized.

6.  On 14 May 2004, the Army Discharge Review Board denied his request for a change of the characterization of his service and the narrative reason for discharge.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-11 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 Army Regulation 40-501, chapter 3.  The characterization of service for Soldiers separated under this provision of regulation will normally be honorable, but will be uncharacterized if the Soldier is in an entry level status.  Army regulations state a Soldier is in an entry level status if the Soldier has not completed more than 180 days of continuous active duty service prior to the initiation of separation.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System.  It sets forth policies, responsibilities and procedures that apply in determining whether a soldier is unfit because of physical disability.  Paragraph 3-3 states that, according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service.  An example of these conditions include a manifestation of symptoms of chronic disease from date of entry on active military service (or so close to that date of entry that the disease could not have started in so short a period) which will be accepted as proof that the disease existed prior to entrance into active military service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DD Form 214 should be corrected to show he was discharged due to medical reasons that were service connected has been carefully considered.

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The uncharacterized discharge directed and the reasons therefore were appropriate considering all the fact of the case.

3.  Although he did not meet medical procurement standards, he was determined to have met medical retention standards and as a result, he would not have met the criteria for referral to a PEB or disposition through medical channels.

4.  There is no evidence showing his medical condition was unfitting for retention at the time.  Therefore, there was no basis for medical retirement or separation.  He was separated from active duty for reasons other than physical disability.

5.  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)                                         AR20100019111



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ABCMR Record of Proceedings (cont)                                         AR20100019111



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