IN THE CASE OF:	   

		BOARD DATE:	  4 October 2011

		DOCKET NUMBER:  AR20110004959 


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, correction of his records to show he was medically discharged.

2.  The applicant states he was discharged because he did not meet medical fitness standards at the time of enlistment.  However, the real reason he was discharged was due to a tank accident at the "wash out" facility.  After the accident he saw a doctor who told him that due to the accident, both his night vision and color vision were damaged.

3.  The applicant provides no additional documentary evidence in support of his application.

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 military personnel records do not contain a copy of his entrance medical examination, i.e., Standard Form (SF) 88 (Report of Medical Examination).

3.  The applicant enlisted in the Regular Army for a period of 3 years on 2 May 1972.

4.  Headquarters, U.S. Army Training Center, Infantry, Fort Ord, CA, Special Orders Number 182, dated 30 June 1972, as amended by Headquarters, U.S. Army Armor Center, Fort Knox, KY, Special Orders Number 151, dated 14 July 1972, assigned the applicant to Company A, 3rd Battalion, 1st Advanced Individual Training Brigade, Fort Knox, KY, on 14 July 1972, for further training in military occupational specialty 11E (Armor Crewman).

5.  An SF 93 (Report of Medical History) completed by the applicant shows in:

   a.  item 11 (Have you ever had or have you now?), in response to the entry for "Eye trouble" the applicant indicated "Yes";

   b.  item 19 (Have you ever been a patient in any type of hospitals?), the applicant indicated "Yes" and entered "Ireland Hospital, 22 August 1972, Fort Knox, Bad Eyes, Dr. Nevins.  Med. 200 for bad eyes";

   c.  the "Notes" section the medical doctor entered [item 11] "Eye trouble - color blindness [indecipherable]" and "[item] 19 - Noted"; and

   d.  the examining physician placed his signature on this document on
23 August 1972.

6.  A DA Form 2496 (Disposition Form), dated 22 August 1972, subject:  Application for Separation from Service by Reason of Erroneous Enlistment or Induction, shows the applicant was advised that a medical examination revealed a medical condition which would have permanently disqualified him for entry in the military service had it been detected at that time and it does not disqualify him from retention in the military service under the provisions of Army Regulation 


40-501 [Standards of Medical Fitness], Chapter 3 [Medical Fitness Standards for Retention and Separation, Including Retirement]:

   a.  it also shows he was advised that the approved medical board confirmed the findings of the examining physician and that he could apply for separation due to having been erroneously enlisted;

   b.  he certified he was counseled as to his rights and that he fully understood his rights; and

   c.  the applicant placed his signature on the application for separation by reason of erroneous enlistment.

7.  On 28 August 1972, the separation authority approved the applicant's separation action under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-9, based on erroneous enlistment.

8.  Headquarters, U.S. Army Armor Center, Fort Knox, KY, Special Orders Number 184, dated 29 August 1972, discharged the applicant from the U.S. Army based on medical reasons, effective 30 August 1972.

9.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the applicant was honorably discharged on 30 August 1972.  He completed 3 months and 29 days of net active service:

   a.  item 11c (Reason and Authority) shows he was discharged "because of not meeting medical fitness standards at time of enlistment" under the provisions of Army Regulation 635-200; and 

	b.  item 32 (Signature of Person Being Transferred or Discharged) shows the applicant placed his signature on the document.

10.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 5 (Separation for Convenience of the Government), paragraph 5-9, provides that Soldiers who were not medically qualified under procurement medical fitness standards when accepted for induction or initial enlistment will be discharged when a medical board, regardless of the date completed, establishes that a medical condition was identified by appropriate military medical authority within four months of the 


member's initial entrance on active duty or active duty for training under the Reserve Enlistment Program of 1963, which would have permanently disqualified him for entry into the military service had it been detected at that time, and does not disqualify him for retention in the military service under the provisions of Army Regulation 40-501.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he was medically discharged as a result of an injury he sustained while on active duty.
2.  The applicant's contention was carefully considered, however:

   a.  there is no evidence of record, and the applicant provides insufficient evidence, that shows his eye condition was the result of an accident at a tank "wash out" facility;

	b.  the applicant applied for separation from military service by reason of having been erroneously enlisted based on a medical condition which would have permanently disqualified him from entry into military service; and

	c.  accordingly, the separation authority directed that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 5-9, for failure to meet procurement medical fitness standards at time of enlistment.

3.  Records confirm the applicant's separation was administratively correct and in compliance with applicable regulations in effect at the time.

4.  In view of all of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20110004959



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ABCMR Record of Proceedings (cont)                                         AR20110004959



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