IN THE CASE OF:	  

		BOARD DATE:	  1 September 2011

		DOCKET NUMBER:  AR20110000132


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he was medically discharged.

2.  The applicant states the entry in item 30 (Remarks) of his DD Form 214, "Did not meet fitness standards at the time of enlistment" is incorrect.  He received an honorable discharge and his enlistment physical shows no problems existed with his joints and they were rated as a "1."

3.  The applicant provides:

* his DD Form 4 (Enlistment Record - Armed Forces of the United States), dated 14 January 1966
* a Standard Form (SF) 88 (Report of Medical Examination), dated
29 November 1965
* an SF 88, dated 13 January 1967
* an SF 88 dated 23 March 1967
* three statements of support
* a Board of Veterans' Appeal, Docket Number xx-xx 481, dated 17 April 2009
* a Decision Review, dated 19 May 2009
* a U.S. Court of Appeals for Veterans Claims, Number 09-1938, dated 
28 January 2010


* a Department of Veterans Affairs (DVA) compensation letter, dated 
27 May 2009

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's SF 88, dated 29 November 1965, found him medically qualified for military service and he enlisted in the U.S. Army Reserve (USAR) on 14 January 1966.

3.  On 10 January 1967, the applicant was ordered to initial active duty for training (IADT) as a USAR Soldier.

4.  On 23 March 1967, he underwent a medical examination for the purpose of appearing before a Medical Evaluation Board (MEB).  The military physician states the applicant suffered from "Derangement, internal, left knee, old tear of the medial meniscus with laxity of the anterior cruciate and medial collateral ligaments."  The examining physician found the applicant qualified for retention, but not qualified for enlistment or induction.

5.  On 3 April 1967, he requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-9 and 2-10c(2) for a physical condition which existed prior to his enlistment in the USAR on 29 November 1965 and entry on active duty on 13 January 1967.  He further acknowledged the injury occurred approximately 1 year prior to his enlistment in the USAR.

6.  On 4 April 1967, the MEB confirmed the original diagnoses and found him medically fit for further service in accordance with current medical fitness standards.  The board recommended the applicant's separation from service for a condition existing prior to service in accordance with Army Regulation 635-200, paragraph 5-9.
7.  On the same day, the findings and recommendation of the MEB were approved.  The applicant acknowledged he had been informed of the findings and recommendations and he indicated he did not desire to appeal.

8.  On 7 April 1967, the applicant was honorably discharged under the provisions of Army Regulation 635-200, chapter 5, section III by reason of not meeting medical fitness standards at time of enlistment.  He completed 2 months and 28 days of total active service.

9.  The applicant submitted:

	a.  various military medical records, to include his entrance examination.  This document shows his lower extremities as normal;

	b.  three statements of support which summarily state he injured his knee while playing football during his active duty for training.  Further, he did not have any pre-existing injuries prior to his enlistment; and

	c.  correspondence from the DVA granting service-connection but denying entitlement to VA disability pension benefits for his service-connected disability.  He was granted a 10 percent (%) disability rating percentage, effective 29 July 2002.

10.  Army Regulation 635-200, paragraph 5-9, provided that individuals who were not medically qualified under procurement medical standards when accepted for induction or initial enlistment would be discharged when a medical board, regardless of the date completed, established that a medical condition was identified by appropriate military medical authority within 4 months of the member's initial entrance on active duty or ADT under the Reserve Enlistment Program of 1963 which would have permanently disqualified him for entry into the military service had it been detected at that time, and did not disqualify him for retention in the military service under the provisions of Army Regulation
40-501 (Medical Fitness Standards for Retention and Separation, Including Retirement), chapter 3.  As an exception, an individual who is found to meet the requirements above, but who elects to complete the period of service for which inducted or enlisted, will not be discharged under this paragraph.  Such member would be required to sign a statement electing to complete his period of service, notwithstanding his eligibility for discharge under this paragraph.  

DISCUSSION AND CONCLUSIONS:

1.  Although not initially identified during his military entrance examination, an MEB found his medical condition existed prior to his enlistment in the USAR and he stated in his request for discharge that he sustained the injury 1 year prior to his enlistment.  Further, the record shows he was found ineligible for induction, but was qualified for retention, and he still elected to be separated.

2.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20110000636



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ABCMR Record of Proceedings (cont)                                         AR20110000132
	


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