IN THE CASE OF:	  

		BOARD DATE:	  19 July 2011

		DOCKET NUMBER:  AR20110001171 


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:

* item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be amended
* entries on his DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) be amended

2.  The applicant states, in effect:

* he wants the entry "EXISTED PRIOR TO SERVICE, PEB" in item 28 of his DD Form 214 removed
* he wants the entry "NOT PERMANTLY [sic] SERVICE AGGRAVTED [sic]" in item 13 (Diagnosis) of his DA Form 3947 removed
* he did not place an "X" in items 15 (The patient does/does not desire to continue on active duty under AR [Army Regulation] 635-40) and 24 (I have been informed of the approved findings and recommendation of the board) of his DA Form 3947
* his disability was aggravated while he was in the service
* he had surgery while in the service and went through numerous casts due to his job duties
* it is not his fault the surgery did not take
* he was told just to sign his name "here and here" through the stack of papers so they could hurry him out of the service
* he wanted to stay in the service and he loved what he was doing in the service   
3.  The applicant provides:

* DD Form 214
* DA Form 3947

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.  He enlisted in the U.S. Marine Corps on 9 July 1985.  On 29 July 1985, he was discharged for physical disability existing prior to entry determined by a Medical Board (entry level separation).    

3.  He enlisted in the Regular Army on 9 September 1986 for a period of 3 years.  On 18 November 1986, he was discharged for fraudulent entry.

4.  He enlisted in the Army National Guard on 21 September 1993.  On 20 June 1996, he was honorably discharged for enlistment in the Regular Army.  

5.  His enlistment contract shows he enlisted in the Regular Army on 21 June 1996 for a period of 3 years.  He was awarded military occupational specialty 11B (infantryman).  

6.  A DA Form 3349 (Physical Profile Record), dated 6 January 1998, shows he was issued a permanent profile "3" for great toe "JT" [joint] pain; hallux limitus. 

7.  Item 13 of a DA Form 3947, dated 26 March 1998, shows an MEB diagnosed him with an EPTS [existed prior to service] condition of symptomatic hallux limitus with DJD [Degenerative Joint Disease], first metatarsal phalangeal joint left foot with arthritic changes which have been resistant to both conservative and surgical intervention, medically unacceptable in accordance with AR 40-501, chapter 3-13b(1) and not permanently service aggravated.  Item 15 of this form shows an "X" in the entry "The patient does not desire to continue on active duty under AR 635-40."  The applicant agreed with the board's findings and recommendation on 7 April 1998.  Item 24 of this form shows an "X" for the entry "I agree with the board's findings and recommendation."  The MEB recommended referral to a Physical Evaluation Board (PEB).  

8.  On 14 April 1998, a PEB found the applicant physically unfit due to left foot pain, due to symptomatic hallux limitus, first MP [metatarsal phalangeal] joint with arthritic changes.  In the disability description section it states the applicant had bunion surgery prior to entry.  The activities required of an infantryman resulted in chronic foot pain which, with his profile restrictions, precluded duty performance as an infantryman.  Based on a review of the objective medical evidence of record, the PEB found his medical and physical impairment prevented reasonable performance of duties required by grade and military specialty.  There was compelling evidence to support a finding that the current condition was EPTS and was not permanently aggravated by such service.  The PEB recommended a combined 0 percent (%) disability rating percentage and separation from the service without disability benefits.  On 24 April 1998, the applicant concurred with the findings and recommendations and waived a formal hearing.  

9.  The U.S. Army Physical Disability Agency approved the findings and recommendations on 29 April 1998.  

10.  On 24 June 1998, he was honorably discharged under the provisions of Army Regulation 635-40, paragraph 4-24b(4) for disability, existed prior to service, PEB.

11.  Item 25 (Separation Authority) of his DD Form 214 shows the entry 
"AR 635-40, PARA [paragraph] 4-24B(4)."  Item 26 (Separation Code) shows the entry "JFM."  Item 28 (Narrative Reason for Separation) on his DD Form 214 shows the entry, "DISABILITY, EXISTED PRIOR TO SERVICE, PEB." 

12.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation states the reason for discharge based on separation code “JFM” is “Disability, Existed Prior to Service, Physical Evaluation Board (PEB)” and the regulatory authority is Army Regulation 635-40, paragraph 4-24b(4).  




DISCUSSION AND CONCLUSIONS:

1.  He contends his disability (left foot pain) was aggravated while he was in the service and the entry "not permanently service aggravated" should be removed from item 13 of his DA Form 3947.  An MEB found his disability EPTS and was not permanently service aggravated.  A PEB found he had bunion surgery prior to entry and there was compelling evidence to support a finding that his current condition EPTS was not permanently aggravated by such service.  There is insufficient evidence, and he provides no substantiating evidence, on which to amend item 13 of his DA Form 3947.     

2.  He contends he did not place an "X" in items 15 and 24 of his DA Form 3947.  However, there is no evidence to support this contention.  He provides no evidence to substantiate that he did not "X" or agree with the entries in those items and therefore there is insufficient evidence on which to amend items 15 or 24 of his DA Form 3947.  

3.  The narrative reason for separation used in the applicant’s case is correct and was applied in accordance with the applicable regulations.  Therefore, there is insufficient evidence on which to amend item 28 of his DD Form 214.

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)                                         AR20110001171





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ABCMR Record of Proceedings (cont)                                         AR20110001171



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