IN THE CASE OF:	  

		BOARD DATE:	  29 March 2011

		DOCKET NUMBER:  AR20100023230 


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 uncharacterized discharge be changed to honorable or appropriate equivalent; his separation code be changed to a medical discharge or appropriate equivalent; and his narrative reason for separation be changed to a medical discharge.  

2.  The applicant states he was injured on active duty and he was told he would receive a medical discharge.  He contends he has documents which state he would receive a medical discharge.  He is now a disabled veteran with a disability rating of 30 percent.  He believes his DD Form 214 (Certificate of Release or Discharge from Active Duty) is in error because his service connected injury has been documented by the Department of Veterans Affairs (DVA). 

3.  The applicant provides two DVA Rating Decisions, dated 22 April and 28 April 2010; DA Form 3349 (Physical Profile), dated 23 February 1999; and a memorandum, dated 15 March 1999, from Troop D, 5th Squadron, 15th Cavalry, 1st Armor Training Brigade.

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 30 December 1998.  He was assigned to Fort Knox, KY for basic training.

3.  Neither his medical records nor the complete facts and circumstances of his discharge are available for the Board's review; however, his official military personnel file contains a DD Form 214 that was completed at the time of discharge.  

4.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), Paragraph 5-11, on 12 April 1999, in the rank of private/E-1.  He was assigned a separation code of "JFW" and the narrative reason for separation is "Failure to Meet Procurement Medical Fitness Standards."  At the time of his discharge, he had completed 3 months and 13 days net active service.

5.  The Army Discharge Review Board denied his request for an upgrade of his discharge on 17 September 2010.

6.  The applicant provides a copy of a temporary profile he received for his medical condition - "FX Met" and a memorandum from his unit placing him in the Holding Detachment at Fort Knox, KY.  This document shows he was pending an Entry Level Separation under the provisions of chapter 11, Army Regulation 635-200 (Personnel Separations).  He further provides correspondence from the DVA which shows he was assigned a 30 percent disability rating for the service connected injury - "Stress fracture, acquired pes cavus and osteoarthritis, right foot/ankle."

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) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a Medical Evaluation Board (MEBD).  Those members who do not meet medical retention standards based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness) will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

9.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states, that the SPD code of JFW is the appropriate code to assign to Soldiers separated under the provisions of Paragraph 5-11, Army Regulation 635-200, by reason of “failed medical/physical procurement standards”.  The SPD/RE Code Cross Reference Table included in the regulation establishes RE-3 as the proper code to assign members separated for this reason with the SPD code of JFW.  

DISCUSSION AND CONCLUSIONS:

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

2.  The facts and circumstances surrounding his discharge are not available for review with this case.  However, his properly-constituted DD Form 214 shows he was discharged under the provisions of paragraph 5-11 of Army Regulation 
635-200, by reason of failure to meet procurement medical fitness standards. 

3.  Although he did not meet to meet procurement medical fitness standards, it is presumed he 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 that 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.  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 and the reasons therefore were appropriate considering all the available evidence.

6.  His RE code was assigned based on his separation under the provisions of paragraph 5-11 of Army Regulation 635-200 by reason of failure to meet procurement medical fitness standards.  The appropriate separation code associated with this type of discharge is "JFW" and the corresponding RE code associated with this separation code and type of discharge is RE-3.  Therefore, he received the appropriate separation and RE codes associated with his discharge.

7.  The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  Unlike the Army, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  A disability determination granted by the DVA does not constitute an error in the applicant's separation processing or substantiate grounds for medical discharge.

8.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20100023230



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ABCMR Record of Proceedings (cont)                                         AR20100023230



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