IN THE CASE OF:	  

		BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20110006186 


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 that his discharge be changed to show he was discharged by reason of a permanent disability.

2.  The applicant states, in effect, in 1974 a doctor told him that he would be discharged due to medical conditions (severe lower back pain) that he incurred as a result of a fall while exiting the shower during basic training.  He goes on to state that he was discharged 6 days prior to completing 90 days of service and he has been unable to receive benefits.  He also states that he has degenerative disc disease as a result of the fall, he has had surgery, and he needs more surgery.  Accordingly, he needs his DD Form 214 (Report of Separation from Active Duty) corrected to show he was discharged by reason of a permanent disability.  

3.  The applicant provides a statement in support of his claim and a copy of his 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 11 February 1974, the applicant enlisted in the Regular Army in New Haven, Connecticut for a period of 3 years, training as an equipment maintenance clerk, and assignment to Europe.  He was transferred to Fort Dix, New Jersey to undergo basic training.

3.  On 26 February 1974, the applicant was issued a temporary profile (2 weeks) for limited duty due to lumbosacral strain.

4.  On 8 March 1974, the applicant submitted a request to be separated from the service under the provisions of Army Regulation 635-200, paragraph 5-9 and cited that at the time of his entry into the service he did not meet the medical fitness standards of the military service.

5.  On 18 March 1974, a medical board conducted at Walson Army Hospital at Fort Dix and reviewed the applicant’s records.  It noted that the applicant was involved in an automobile accident in December 1973 and has had back pain since that time.  X-ray findings revealed a spina bifida occulta at L5 and S1.  The board opined that the applicant was unfit for induction and recommended that he be separated from the service under the provisions of Army Regulation 635-200, paragraph 5-9, due to a condition that existed prior to service.  The findings and recommendation of the board were approved and the applicant was notified of the results on 25 March 1974. 

6.  On 4 April 1974, he was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-9, due to not meeting medical fitness standards at time of enlistment.  He had served 1 month and 24 days of active service.

7.  There is no evidence in the available records to show that the applicant reported an injury related to his back while in training.  The available records simply show that he complained of lower back pain.

8.  Army Regulation 635-200 provides the policies and procedures for the separation of enlisted personnel.  Paragraph 5-9 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 entry on active duty will be separated.  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 and the condition would have permanently or temporarily disqualified the soldier for entry into the military service had it been detected at the time.  

9.  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.  One of the criteria is that 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in accordance with applicable regulations with no indication of any violations of the applicant’s rights.  The available evidence revealed that the applicant was involved in an automobile accident in December 1973, prior to his enlistment, and had back pain since that time.  

2.  Accordingly, the reason for his discharge was correct because his condition existed prior to his enlistment, which was confirmed by the applicant at the time and by subsequent X-rays.  Therefore, in the absence of evidence to the contrary, it must be presumed that his records are correct and that his condition did not originate in the actual 2 weeks of training that he underwent.   

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)                                         AR20110006186



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ABCMR Record of Proceedings (cont)                                         AR20110006186



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