IN THE CASE OF:	  

		BOARD DATE:	  1 November 2011

		DOCKET NUMBER:  AR20110004017 


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 item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states, in effect, his DD Form 214 states his disability existed prior to service (EPTS), but that is wrong.  His medical evaluation board (MEB) proceedings show he was not hurt prior to [active] service.  He needs this fixed.  He is wasting money that he needs for his family going back and forth to doctors.  He cannot keep a job due to the pain and he is not entitled to any benefits.

3.  The applicant provides his DD Form 214, two pages of medical notes, and MEB Proceedings.

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 3 August 2005 and he held military occupational specialty (MOS) 14S (Avenger Crewmember).

3.  On 30 January 2007, an MEB convened at Fort Jackson, SC, and diagnosed him with abdominal pain and diastasis recti (also known as abdominal separation).  It is a disorder defined as a separation of the rectus abdominis muscle into right and left halves.  The MEB found both conditions to be medically unacceptable and recommended that the applicant be referred to a physical evaluation board (PEB).  Item 13d (EPTS) of the MEB proceedings show the entry "No."  The applicant indicated he did not desire to continue on active duty and he concurred with the MEB findings.

4.  On 7 February 2007, an informal PEB convened at Washington, DC, and confirmed his two unfitting disabilities.  The PEB found:

	a.  The applicant's chronic abdominal pain began in September 2005 while he was in basic training and early advanced individual training.  The physical examination was remarkable for diastasis recti which caused the chronic pain and the Soldier was noted to have had a small umbilical hernia on his accession physical in July 2005.  It was found he could not run or jump and he was unable to perform the duties of his MOS or of a Soldier.  The PEB reviewed the medical evidence of record and concluded there was sufficient evidence to substantiate an EPTS condition for which he was now unfit that was not permanently aggravated by service.  

	b.  In that EPTS conditions were not compensable under the Army Physical Disability System, the proper disposition was separation from the Army without entitlement to disability benefits and the PEB recommended the applicant be separated from the service without disability benefits.  The PEB president approved the findings and recommendations of the PEB and on 20 February 2007 the PEB proceedings were approved by the Secretary of the Army.

	c.  The last page of the PEB proceedings are not available; however, it appears he concurred with the PEB findings and recommendations.

5.  On 23 February 2007, he was honorably discharged.  The DD Form 214 he was issued shows he was discharged under the provisions of paragraph 4-24b(4) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of disability, EPTS.  This form further shows he completed a total of 1 year, 6 months, and 21 days of creditable active military service.  Item 26 (Separation Code) shows the entry "JFM" and item 28 shows the entry "disability, EPTS, PEB."

6.  Army Regulation 635-40 establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It provides for MEBs, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

7.  Chapter 4 of Army Regulation 635-40 provides for the separation of enlisted Soldiers found to be unfit by a PEB due to a condition which existed prior to service or occurred in the line of duty and not due to the Soldier's misconduct.  Paragraph 4-24b(4) provides for separation for physical disability without severance pay.

8.  Army Regulation 635-40 states, in pertinent part, 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.  Examples are congenital malformations and hereditary conditions or similar conditions in which medical authorities are in such consistent and universal agreement as to their cause and time of origin that no additional confirmation is needed to support the conclusion that they existed prior to military service.  Likewise, manifestation of lesions or 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) will be accepted as proof that the disease existed prior to entrance into active military service.  

9.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code "JFM" is the correct code for Soldiers separating under Army Regulation 635-40, paragraph 4-24b (physical disability existing prior to entry on active duty established by PEB proceedings; not entitled to severance pay). 




DISCUSSION AND CONCLUSIONS:

1.  The applicant suffered from medical conditions, chronic abdominal pain and diastasis recti, which rendered him unable to reasonably perform the duties of his grade and specialty.  He underwent an MEB that referred him to a PEB.  Notwithstanding the fact that the MEB proceedings annotated his medical condition as "No" for EPTS, upon further review the PEB confirmed his condition EPTS as he developed abdominal pain in September 2005 during basic training and his accession physical in July 2005 noted he had a small umbilical hernia.  

2.  According to accepted medical principles, the manifestation of a chronic disease or a congenital malformation 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) it is accepted as proof that the disease existed prior to entrance into active military service.  Consequently, his records were evaluated by an MEB that referred him to a PEB. The PEB found him medically unfit and found compelling evidence to support a finding that he had an EPTS condition that was not permanently aggravated by military service.  Accordingly, the PEB recommended separation by reason of physical disability without entitlement to severance pay.

3.  His narrative reason for separation was assigned based on the fact that he was separated under the provisions of paragraph 4-24b(4) due to his EPTS condition of chronic abdominal pain due to diastasis recti.  Absent the medical condition, there was no fundamental reason to convene an MEB and/or a PEB.  The underlying reason for his MEB/PEB was his EPTS condition.  The only valid narrative reason for separation permitted under this paragraph is "disability, EPTS."  Therefore, the applicant received the proper narrative reason for separation.

4.  In view of the foregoing evidence, he is not entitled to the requested relief.

5.  The ABCMR does not grant requests for the correction of records solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based on its merits when an applicant requests a correction of the military records.







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)                                         AR20110004017



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ABCMR Record of Proceedings (cont)                                         AR20110004017



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