IN THE CASE OF:	

		BOARD DATE:	    18 January 2012

		DOCKET NUMBER:  AR20110008227 


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 DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings) be corrected to show that he had an 11-year history and that it was his left leg, and correction of his records to show he was medically discharged. 

2.  The applicant states there are no records of his having a 20-year history of problems with his legs, that it should refer to his left leg instead of his right, and he should have been medically discharged because his condition was aggravated by military service

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a copy of his DA Form 4707, a third-party email statement, and copies of his civilian health records.

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 enlisted in the Regular Army on 1 May 2003 for a period of 4 years, training as a petroleum supply specialist, and a $17,000 enlistment bonus.  He was transferred to Fort Benning, Georgia to undergo his basic training.

3.  A DA Form 5006-R (Authorization for Disclosure of Information) shows he was in the medical section at Fort Benning, Georgia, on 7 May 2003, when he was diagnosed with swelling feet.  His individual sick slips show he was scheduled for continued inpatient and outpatient medical care.  The individual sick slips further show the applicant requested to be returned to duty to take his physical training test and the attending physician ordered additional tests on the applicant to include an electrocardiogram (EKG).  The applicant was placed on a physical profile and he continued to be sent to mandatory sick call and needed appointments as a result of his swollen feet.  The attending physician determined that his condition existed prior to service.

4.  On 5 June 2003, an EPSBD diagnosed the applicant as having chronic right foot pain and swelling that existed prior to service (EPTS) and that the applicant had a 2-year history of right foot pain and swelling.  The EPSBD recommended the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 5-11.

5.  On 15 July 2003, the applicant was discharged, under the provisions of Army Regulation 635-200, chapter 5-11, based on his failure to meet procurement medical fitness standards.  He had completed 2 months and 15 days of net active service and his service was uncharacterized.  The DD Form 214 he was furnished at the time of his discharge shows that he was assigned an RE-3 code and a JFW (failure to meet procurement medical fitness standards) separation code.

6.  Army Regulation 635-200 sets forth the policy for the separation of enlisted personnel.  Paragraph 5-11 provides the criteria for the separation of personnel who did not meet procurement medical fitness standards when accepted for enlistment.  It states that medical proceedings must establish that a medical condition was identified by appropriate military medical authorities within 
6 months of initial active duty training which would have temporarily or permanent disqualified the member for entry into military service had it been detected at the time of enlistment.  While an honorable or general discharge may be issued when clearly warranted by unusual circumstances involving personal conduct and performance of duty, personnel who are in an ELS will receive “Uncharacterized” service.  An honorable discharge is rarely ever granted during the ELS period, which comprises the first 180 days of continuous active service or the first 180 days of continuous active service after a break in service of more than 92 days.  

7.  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.  It 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.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his diagnosis was incorrect, that his condition was aggravated by military service, and that he should have been medically discharged have been noted and appear to lack merit.

2.  The applicant’s administrative discharge was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant’s rights.

3.  It is also reasonable to presume that given the time between when the applicant enlisted and the time his condition was discovered, that the applicant provided most of the information pertaining to his history.

4.  In any event, the applicant’s condition existed prior to his service and was an unqualifying condition.  Accordingly, he was properly discharged after undergoing the required medical examinations and there is no basis to grant him a medical discharge for a condition he had when he enlisted. 

5.  Therefore, in the absence of evidence to show that an error or injustice existed in his case, there appears to be no basis to grant his request.



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)                                         AR20110008227





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ABCMR Record of Proceedings (cont)                                         AR20110008227



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