IN THE CASE OF:	  

		BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20110004138 


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 records be screened by a medical evaluation board (MEB) and physical evaluation board (PEB), correction of his discharge to show medical retirement, and correction of his initial enlistment date on active duty.

2.  He states he was not given due process during his Entrance Physical Standards Board (EPSBD) because he was not provided the opportunity to concur or non-concur on the DA Form 4707 (EPSBD Proceedings).

3.  He also adds the following chronological history of events:

	a.  He initially enlisted in the Regular Army on 8 August 1993, which would have given him more than 120 days of military service for benefits.  On 22 October 1993, he fell while attending basic combat training (BCT) during a time of war.  During a road march while wearing full combat gear, he hurt his neck and elbow while running to take cover.

	b.  On 26 October 1993, he was treated at the troop medical clinic and was given a shoulder sling to help ease the pain.  He was not given a physical profile nor were x-rays taken, but the prognosis was tenderness to the elbow.

	c.  On 28 October 1993 while in formation, he had his first muscle spasm in his neck and he was taken to the emergency room.  X-rays were taken and it was discovered that he had a chipped bone in his elbow.  He was then sent before an EPSBD for the tingling he had in his hand due to the fall and he was sent to physical therapy.

	d.  On 29 October 1993, the EPSBD was started and this is where all the injustices occurred.  The board stated he did not tell his recruiter about his elbow injury which occurred prior to coming into the Army.  This is a false statement.

	e.  During his medical prescreening for entrance in the Army, he was given an assessment for neck spasms and preexisting cubital tunnel syndrome, most likely due to his previous elbow fracture.

	f.  His entrance exam shows he had broken his elbow when he was 12 years old and the medical doctor who did the examination noted that the fracture had healed.  He had no problems with his elbow until he fell during BCT.

	g.  The EPSBD made a determination in November 1993; however, he was never given a magnetic resonance imaging (MRI), computed axial tomography scan, or anything to determine the severity of the injuries to his neck.  The DA Form 4707 was never signed by him, his company commander, or the discharge authority.  The only person who signed this form was the medical treatment facility (MTF) commander.

	h.  This was a grave injustice and he was not afforded counsel during any of this, but only received this information from the Department of Veterans Affairs (VA).

	i.  The VA evaluated his injuries and has given him a service connected disability rating of 60 percent and did not determine his condition was preexisting. This is a combat-related training injury which occurred during his period of service and he should have gone before an MEB and PEB for disability processing.

4.  The applicant provides:

* DD Form 2246 (Applicant Medical Prescreening)
* extract of his military medical records
* unsigned copy of a DA Form 4707
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* extract of his VA medical records
* excerpts from various Army regulations



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.  His records show he underwent a medical prescreening on 26 August 1993 for entrance into the Army and it was noted on his DD Form 2246 that he had broken his elbow at the age of 11 and it was in good condition.  This form was initialed by a medical doctor and signed by the applicant and his recruiter.

3.  He enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) on 30 August 1993 in Jacksonville, FL.  His DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), paragraph 8, states, "My enlistment in the DEP is in a nonpay status.  I understand my period of time in the DEP is NOT creditable for pay purposes upon entry into a pay status.  However, I also understand that this time is counted toward fulfillment of my military service obligation or commitment."  He underwent a medical entrance examination on the same day which listed his elbow fracture and the fact that it had healed.  On 30 September 1993, he was released from DEP status and enlisted in the Regular Army on 1 October 1993.

4.  The applicant was treated for pain in his left elbow and left hand on 26 October 1993.  He complained of tenderness and numbness which occurred after falling during a road march on 22 October 1993.  His records also indicate he was seen on several other occasions due to neck spasms and because of weakness and numbness in his left hand and elbow.

5.  His records contain a signed copy of the EPSBD Proceedings.  This document shows he was a 22-year old active duty trainee who stated he fractured his left elbow and had intermittent symptoms of pain and a tingling sensation prior to coming into the service.  The applicant stated he did not talk to his recruiter about that portion of his problem when coming into the service.

6.  The EPSBD medical report shows he was assessed for neck spasms and was anticipated to recover with some physical therapy.  He was also evaluated for preexisting cubital tunnel syndrome, most likely secondary to his previous elbow fracture.  The board concluded that he did not meet medical fitness standards for enlistment under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 2 (Physical Standards for Enlistment, Appointment, and Induction), paragraph 2-9b(7), for current intrinsic paralysis or weakness of upper limbs, including nerve paralysis, carpal tunnel, and cubital syndromes, and lesion of ulnar and radial nerve sufficient to produce physical findings in the hand, such as muscle atrophy and weakness.  The plan was to follow him for his neck spasms until the time he was separated from the service and treatment would be modified as necessary.

7.  Item 21 (Action by Service Member) of the DA Form 4707 shows the applicant had been informed of the medical findings and he understood that legal advice by the Army was available to him or that he could consult with a civilian attorney at his own expense.  He also acknowledged he could request to be discharged from the U.S. Army without delay or to request retention on active duty.  If retained, he could be involuntarily reclassified into another military occupational specialty based upon his medical condition.  The applicant placed his initials in the block indicating:  "I concur with these proceedings and request to be discharged from the U.S. Army without delay."  Item 23 (Signature) and item 24 (Date) show he signed this form on 1 December 1993 and his company commander also signed the form on the same day.

8.  The discharge authority approved his discharge under the provisions of paragraph 5-11 (Failure to Meet Procurement Medical Fitness Standards), Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  The discharge authority also signed this form.  Accordingly, he was discharged on 13 December 1993 under the provisions of Army Regulation 635-200, paragraph 5-11, after completing 2 months and 13 days of active duty service.  His DD Form 214 shows in item 12a (Date Entered Active Duty this Period) that he entered active duty on 1 October 1993.  Item 18 (Remarks) shows he was in a DEP status from 30 August 1993 to 30 September 1993.

9.  He provided copies of his VA medical records which show he was evaluated for neck pain and he had an MRI completed on his left wrist and elbow.  He was diagnosed with intervertebral disk syndrome with radicular symptoms and cervical spondylosis with foraminal stenosis.  A copy of his VA Rating Decision is not available; however, he did provide a copy of U.S. Court of Appeals for Veterans Claims Declaration of Financial Hardship, dated 15 September 2010.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-11 sets the policy and prescribes procedures for separating members who were not medically qualified under procurement medical fitness standards when accepted for enlistment or who became medically disqualified under these standards prior to entry on active duty.  Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by appropriate military medical authority within 6 months of the Soldier's initial entrance on active duty that would have permanently or temporarily disqualified him or her for entry into the military service or entry on active duty had it been detected at that time and does not disqualify him or her for retention.

11.  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 an MEB.  Those members who do not meet medical retention standards will be referred to a PEB for a determination as to whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

12.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance for the preparation of the DD Form 214.  The instructions for item 12a are to enter the beginning date of the continuous period of active duty for issuance of the current DD Form 214 for which another DD Form 214 was not previously issued.  In addition, the instructions for completing item 18 state that for a Soldier who has DEP time, enter "PERIOD OF DEP (inclusive periods of DEP time)."

13.  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.

14.  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.  This regulation provides that 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.  The applicant contends he was not given due process during his EPSBD because he was never afforded the opportunity to confer with counsel or concur or nonconcur with the findings of the board.  He also contends that his initial enlistment date into the Regular Army is incorrect and this prevented him from receiving the benefits he was due.

2.  To the contrary, the evidence of record confirms the applicant was given all due process by his own acknowledgement on the DA Form 4707 in which he concurred with the findings of the board and requested immediate discharge from the Army.  He also acknowledged by his signature that he could be represented by military counsel or he could have hired a civilian attorney at his own expense.

3.  The EPSBD Proceedings clearly show that by the applicant's own admission, he had intermittent symptoms of pain and a tingling sensation, especially in the distribution of the ulnar three and one-half fingers of his left hand, prior to his enlistment and that he did not tell this portion of his medical history to his recruiter.

4.  As such, the EPSBD properly determined that at the time of his entrance in the military, he was found to have a the preexisting condition of cubital tunnel syndrome, most likely secondary to his previous elbow fracture.

5.  While he contends that he should have gone before a medical board, he was never determined to be medically disqualified for retention, only disqualified for procurement.  He could have been retained on active duty since he met medical retention standards, but he requested discharge without delay.  Therefore, there was no need to refer the applicant to an MEB or a PEB for a determination.

6.  The fact that he contends he is receiving 60-percent disability from the VA due to his medical condition has no bearing on the Army's medical assessment of his pre-existing medical condition.  The VA applies its own standards to awarding ratings and may determine service connection even though the Army did not.  As such, the fact the VA gave the applicant a disability rating for his medical condition does not establish an error in this case.

7.  The applicant enlisted in the U.S. Army Reserve DEP on 30 August 1993 and was released from DEP status on 30 September 1993.  He entered active duty in the Regular Army on 1 October 1993.  His DD Form 214 properly shows these entries and, as such, there is no error.

8.  In view of the foregoing, he is not entitled to the 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 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)                                         AR20110004138



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ABCMR Record of Proceedings (cont)                                         AR20110004138



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