IN THE CASE OF:	  

		BOARD DATE:	  29 November 2011

		DOCKET NUMBER:  AR20110010226 


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, removal of the separation program designator (SPD) code "KFN" from item 9c (Authority and Reason) and the statement "physical disability, existed prior to service (EPTS), medical board" from item 27 (Remarks) of his DD Form 214 (Report of Separation from Active Duty).

2.  The applicant states the condition was not EPTS.

3.  The applicant provides:

* DD Form 214
* two letters from the Department of Veterans Affairs
* a four-page medical record progress report

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 11 May 1976 and held military occupational specialty (MOS) 91B (Medical Specialist).  The highest rank/grade he attained during his military service was specialist four/E-4.

3.  Subsequent to completion of MOS training he was assigned to Company C, 172nd Support Battalion, Fort Richardson, Alaska, on or about 12 October 1976.  Item 35 (Record of Assignments) of his DA Form 2-1 (Personnel Qualification Record) shows he was listed as a patient at the Mental Health Center, Madigan Army Medical Center, Tacoma, Washington, on 21 May 1978.

4.  The complete facts and circumstances of his medical board proceedings and subsequent discharge are not available for review with this case.  However, his record contains the applicant's command endorsements approving his medical evaluation board (MEB) proceedings wherein he was found to have a condition which existed prior to his entry on active service and had not been aggravated by service which rendered him unfit for retention in the Army.  His record also contains a properly-constituted DD Form 214.

5.  The applicant was honorably discharged on 2 August 1978.  The DD Form 214 he was issued shows he was discharged under the provisions of chapter 5 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of physical disability, EPTS, medical board.  This form further shows he completed a total of 2 years, 2 months, and 22 days of creditable active military service.  Item 9c shows the entry "KFM" and item 27 shows the entry "physical disability, EPTS, medical board."

6.  The applicant provides two clinical documents wherein his current psychiatrist opines his schizoaffective disorder was not EPTS.  The psychiatrist has been seeing the applicant since December 2002.

7.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  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.  

8.  Chapter 5 of Army Regulation 635-40 provides for the expeditious discharge of enlisted personnel who are not qualified for retention on active duty by reason of physical disability which was neither incurred nor aggravated during any period in which the member was entitled to basic pay in accordance with chapter 3 of Army Regulation 40-501.

9.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code "KFN" is the correct code for Soldiers separating under the provisions of chapter 5 of Army Regulation 635-40 for a physical disability existing prior to entry on active duty as established by medical board proceedings – not entitled to severance pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected by removing the narrative reason for his discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  In the absence of evidence, government regularity insofar as the discharge process must be presumed.  It is presumed all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The opinion rendered by the applicant's psychiatrist is duly noted.  However, the applicant did not become his patient until December 2002, nearly 24 years following his discharge.  Therefore, his opinion is not sufficiently mitigating to establish the applicant's condition was not EPTS.

4.  His narrative reason for separation was assigned based on his separation under the provisions of chapter 5, Army Regulation 635-40.  Absent the medical condition, there was no fundamental reason to convene an MEB.  The only valid narrative reason for separation permitted under this paragraph is "physical disability, EPTS, medical board."  Therefore, the applicant received the proper narrative reason for separation.

5.  In view of the foregoing evidence, 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)                                         AR20110010226



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ABCMR Record of Proceedings (cont)                                         AR20110010226



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