IN THE CASE OF:	  

		BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20110003820 


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 his discharge under the provisions of Army Regulation 635-200 (Enlisted Personnel), paragraph 5-11 (Did Not Meet Medical Fitness Standards – No Disability) be changed to a medical discharge.

2.  He states the Department of Veterans Affairs (VA) determined the bilateral knee condition for which he was discharged was service aggravated and has assigned him a disability rating of 20 percent.

3.  He provides a copy of his VA disability compensation award letter.

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 records show he enlisted in the Regular Army on 7 March 1985.

3.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows he reported to Fort Benning, GA, for basic combat and advanced individual training on 12 March 1985.  Page one of his DA Form 2-1 contains the handwritten letters "EPTS" [existed prior to service] in the top right margin.

4.  A copy of the Entrance Physical Standards Board (EPSBD) which evaluated the applicant and his military medical records are not available for review.  However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged on 1 July 1985 after completing 3 months and 25 days of net active service in a trainee status.  Item 25 (Separation Authority) shows the entry "did not meet medical fitness standards – no disability."

5.  He provides a copy of a VA disability decision rating, dated 21 January 2011.  This document shows he was granted a combined service-connected disability rating of 20 percent for a bilateral knee condition of Osgood-Schlatter disease.

6.  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, active duty for training, or initial entry training will be separated.

7.  Army Regulation 635-200 states 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, 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 (Standards of Medical Fitness), chapter 3.

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 fails to meet medical retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

9.  Title 38, U.S. Code, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  The VA does not make a determination of whether the medical condition is disqualifying for retention in the Army.

10.  Title 38, U.S. Code, section 5110, states the effective date of an award of disability compensation to a veteran will be the day following the date of the veterans' discharge or release if an application therefor is received within 1 year from such date of discharge or release.  The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if an application is received within 1 year from such date.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-2 outlines the functions of the ABCMR.  It states the ABCMR will decide cases on the evidence of record.  It is not an investigative body.  Paragraph 2-9 contains guidance on the burden of proof.  It states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  Without the applicant's military medical records, it is difficult to determine exactly what occurred in his case and administrative regularity in his separation process must be presumed, especially 25 years after the fact.  Therefore, it must also be presumed that the applicant did not meet the criteria for a medical discharge under the physical disability evaluation system.

2.  The VA operates under its own policies and may compensate a veteran for any medical condition which they determined to be service related.  Whether that condition was medically disqualifying for retention is not relevant in the VA's determination.  As such, the fact that the VA gave the applicant a disability rating for his medical condition does not establish an error in this case.



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 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)                                         AR20110003820



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ABCMR Record of Proceedings (cont)                                         AR20110003820



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