IN THE CASE OF:	  

		BOARD DATE:	    13 September 2011

		DOCKET NUMBER:  AR20110004774 


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, his honorable discharge be changed to a medical discharge.  He also requests items 11c (Reason and Authority), 
26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), 28 (Service Schools or Colleges, College Training Courses and/or Post-Graduate Courses Successfully Completed), and 32 (Remarks) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected. 

2.  The applicant states:

* He signed his DD Form 214 when he was discharged but he never received it until 2011
* His DD Form 214 shows the Marksman Marksmanship Qualification Badge with Rifle Bar but he was awarded the Expert Marksmanship Qualification Badge
* He went through basic training and he completed Cook School
* The entry in item 32 pertaining to item 11c (Reason and Authority) makes no sense, is completely untrue, and totally inaccurate
* He was discharged due to kidney failure, blood in his urine, and kidney stones and he did not have these problems prior to his induction
* He did not have 2 days of excess leave as reflected in item 32 of his DD Form 214, his commanding officer gave him that leave to attend his grandmother's funeral


3.  The applicant provides:

* Honorable Discharge Certificate, dated 17 May 1966
* Newspaper article, dated 7 April 1966
* DD Form 214 

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.  On 19 November 1965, he was found qualified for induction with a physical profile of 111111.  Items 33 (Endocrine System) and 34 (E-U System) of his Standard Form (SF) 88 (Report of Medical Examination), dated 19 November 1965, show he was rated normal.  

3.  He was inducted into the Army of the United States on 4 January 1966.  He completed basic combat training.  While in advanced individual training, he was hospitalized on 27 April 1966.  

4.  A clinical record, dated 27 April 1966, shows he was diagnosed with gout; calculus, renal, uric acid; and hematuria - existed prior to service (EPTS).  It was determined he was not physically qualified for induction and enlistment because of recurrent hematuria associated with recurrent uric acid calculi secondary to gout which precluded his satisfactory performance of duty.  The record states he was qualified for retention but he elected separation under the provisions of 635-205, paragraph 3a(6).  He was therefore presented to a Medical Evaluation Board (MEB) for evaluation and disposition.





5.  On 2 May 1966, he underwent a MEB physical examination and he was found:

* to be qualified for retention under the provisions of Chapter III, Army Regulation 40-501
* not to be qualified for induction and enlistment under the provisions of Chapter II, Army Regulation 40-501 with a physical profile of 311111  

6.  Items 33 and 34 of his SF 88, dated 2 May 1966, show he was rated abnormal.

7.  On 3 May 1966, he requested discharge for physical reasons which existed prior to his induction in the Army on 4 January 1966 and entry on active duty on 
4 January 1966.  He indicated he had formation of excess uric [acid]in his blood, kidney stone formation, and blood in his urine which was known to him approximately 1 year prior to his induction in the Army.  

8.  An MEB found him medically fit for further military service in accordance with current medical standards.  His medical conditions and/or physical defects were listed as gout; calculus, renal, uric action; and hematuria - EPTS.  The MEB recommended that he be separated from the service for a condition EPTS under the provisions of Army Regulation 635-205.  On 12 May 1966, the applicant concurred with the MEB's approved findings and recommendations.

9.  On 17 May 1966, he was honorably discharged under the provisions of Army Regulation 635-205.  The separation program number (SPN) 375 that is shown on his DD Form 214 indicates he was discharged because he did not meet medical fitness standards at time of induction/enlistment.  He had served 
4 months and 14 days of total active service.  

10.  His DD Form 214 shows in:

* Item 11c the entry "Para [paragraph] 3a(6) AR [Army Regulation] 635-205 SPN 375 (See #32)"
* Item 13a (Character of Service) the entry "HONORABLE"
* Item 26 the Marksman Marksmanship Qualification Badge with Rifle Bar
* Item 28 the entry "NONE"  
* Item 32 the entries "Excess leave of 2 days from 16Mar66 thru 17Mar66" and "Item 11c - Discharge because of not meeting medical fitness standards at time of induction"    

11.  There is no evidence of record which shows he qualified expert for the M-14 rifle.
12.  Item 41 (Awards and Decorations) of his DA Form 20 (Enlisted Qualification Record) shows entitlement to the Marksman Marksmanship Qualification Badge with Rifle Bar.

13.  There is no evidence of record which shows he was awarded military occupational specialty 94B (cook).  

14.  In support of his claim that he completed the Cook School, he provided a newspaper article, dated 7 April 1966, which states, in pertinent part, "Pvt. [applicant's last name] is a student in the second week of the food service course which includes instruction in small quantity cooking."

15.  There is no evidence of record which shows the applicant was not placed on excess leave during the period 16-17 March 1966.

16.  Army Regulation 635-205, in effect at the time, set forth the basic authority for the separation of enlisted personnel for convenience of the government.  Paragraph 2 stated, in pertinent part, that separation of enlisted personnel was the prerogative of the Secretary of the Army and would be effected only by his authority.  Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for convenience of the Government would be at the Secretary’s discretion and with the type of discharge as determined by him.  Such authority may be given either in an individual case or by an order applicable to all cases specified in such order.

17.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army Physical Disability Evaluation System, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

18.  Army Regulation 635-40 states 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.  

19.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.
20.  Appendix II (Revised Enlisted Separation Program Numbers and Definitions) of Army Regulation 635-5 (Personnel Separations - Administrative Separation Procedures and Forms) shows that SPN 375 is for Soldiers discharged because of not meeting medical fitness standards at the time of enlistment.

21.  Army Regulation 630-5 (Leaves and Passes), in effect at the time, governs the policy and procedures regarding chargeable leave, emergency leave, leave outside the United States, and permissive temporary duty.  Excess leave is defined as leave in excess of accrued or advance leave.  The member is not entitled to pay and allowances for a period of such leave.

22.  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.  The 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.  He contends he did not have kidney and blood problems prior to his induction.  However, evidence shows on 3 May 1966 he indicated he had formation of excess uric [acid] in his blood, kidney stone formation, and blood in his urine which was known to him approximately 1 year prior to his induction in the Army.  

2.  In 1966 an MEB found him medically fit but recommended he be separated from the service for EPTS conditions.  He concurred with these proceedings and requested to be discharged from the Army.  Therefore, there is no basis for granting the applicant's request for a medical discharge.

3.  The evidence of record shows the applicant was discharged because of not meeting medical fitness standards at the time of his induction.  Although he contends his narrative reason for separation is wrong, his narrative reason for separation was administratively correct and in conformance with applicable regulations at the time of his separation.  Therefore, there is no basis for amending item 11c of his DD Form 214.

4.  He contends he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar.  However, there is no evidence and he provided no evidence which shows he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar.  Therefore, there is insufficient evidence on which to amend item 26 of his DD Form 214.  

5.  Although he contends he completed Cook School, there is no evidence of record and he provided no evidence which shows he was awarded MOS 94B.  The April 1966 newspaper article he provided shows he was in his second week of the food service course, not that he completed this course.  He was hospitalized on 27 April 1966 and discharged on 17 May 1966.  Therefore, there is insufficient evidence on which to amend item 28 of his DD Form 214.  

6.  He contends he was on leave, not excess leave, during the period 16-17 March 1966.  However, without his pay records/leave and earnings statements to verify his leave status during the period in question, it must be presumed the information on his DD Form 214 concerning excess leave is correct.  Therefore, there is insufficient evidence on which to amend this entry in item 32 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)                                         AR20110004774





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ABCMR Record of Proceedings (cont)                                         AR20110004774



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