IN THE CASE OF:	  

		BOARD DATE:  9 February 2012

		DOCKET NUMBER:  AR20110012481 


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, a monetary disability rating be issued to her effective September 23, 1985, the date of her discharge, for chronic recurrent left arch tendonitis, moderately symptomatic and Saphenous neuralgia of her left leg. 

2.  She states that she did not receive her disability rating from the Physical Evaluation Board (PEB) as referred by the Medical Evaluation Board (MEB) back in 1985 resulting in a clear and unmistakable error being committed by not awarding her a disability.  She was not awarded and/or granted her a monetary disability benefit at the time of her separation for her disabilities incurred while on active duty and permanently aggravated by the service. 

3.  She provides her:

* Standard Forms (SF) 513 (Medical Record – Consultation Sheet), dated 5 July and 5 November 1984; 15 January and 6 June 1985; and 21 May, 5 July, and 28 August 1986
* SFs 600 (Health Record – Chronological Record of Medical Care), dated 21 September 1984; and 2 and 27 June 1985
* SF 519 (Radiographic Report), dated 20 May 1985
* SF 93 (Report of Medical History), dated 29 May 1985
* SF 68 (Report of Medical Examination), dated 26 June 1985
* Medical Record – Narrative Summary, dated 26 June 1985
* Medical Evaluation Board (MEB) Proceedings, dated 11 July 198


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 record shows she enlisted in the Delayed Entry Program on 15 November 1983.  She enlisted in the Regular Army, in pay grade E-1, on 1 December 1983, for 3 years.  She completed training and was awarded military occupational specialty 94B (Food Service Specialist).

3.  She provided a copy of her MEB Proceedings, dated 11 July 1985, which shows an MEB considered her conditions of chronic recurrent left achilles tendonitis, moderately symptomatic; status post varicose vein stripping; and Sephenous neuralgia, left leg.  The MEB determined the chronic recurrent left achilles tendonitis and Sephenous neuralgia, left leg incurred while entitled to basic pay.  The status post varicose vein stripping was not determined to be incurred while entitled to basic pay and that it existed prior to service.  The MEB recommended she be referred to a PEB.  The board determined that she was not qualified for retention in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-36c(1).

4.  There is no evidence she underwent a PEB for consideration of her medical condition(s).

5.  The complete facts and circumstances surrounding her discharge are not available for review with this case.  However, her records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows she was discharged from active duty in pay grade E-3 on 23 September 1985, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), paragraph 7-17B(1), for Fraudulent Entry.  Her service was characterized as honorable.  She was credited with 1 year, 9 months, and 23 days of active service and no time lost.

6.  Army Regulation 635-200 (Enlisted Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 7 established policy and prescribed procedures for separating members for fraudulent entry.  Paragraph 7-17b(1) provided for separation for fraudulent entry for concealment of prior service.  Soldiers discharged under Chapter 7 may be issued an honorable discharge, a general discharge or discharge under other than honorable conditions as is determined to be appropriate.

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, established the Army Physical Disability Evaluation System and set forth policies, responsibilities, and procedures that apply in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his/her office, grade, rank, or rating.  It provided for MEBs which were convened to document a Soldier's medical status and duty limitations insofar as duty was affected by the Soldier's status.  A decision was made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501, chapter 3.  If the MEB determined the Soldier did not meet retention standards, the board would recommend referral of the Soldier to a PEB.

8.  Army Regulation 40-501, chapter 3, in effect at the time, provided for the separation of an individual found to be unfit by reason of physical disability, he/she must be unable to perform the duties of his/her office, grade, rank or rating.  Members with conditions, as listed in that chapter, were considered medically unfit for retention on active duty and were referred for disability processing.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and found not to have merit.  On 11 July 1985, a MEB determined her conditions of chronic recurrent left achilles tendonitis and Sephenous neuralgia, left leg, incurred while entitled to base pay.  The status post varicose vein stripping was not determined to be incurred while entitled to base pay and that it existed prior to service.  The MEB recommended she be referred to a PEB.  

2.  Her record is void of the facts and circumstances which led to her discharge.  However, it appears her medical processing was discontinued and she was not considered by a PEB based on her fraudulent entry.  Her record contains a DD Form 214 that show she was discharged on 23 September 1985, under the provisions of Army Regulation 635-200, for Fraudulent Entry.

3.  While she has submitted evidence that her medical conditions probably would have amounted to a disability separation under the provisions of Army Regulation 635-40.  

4.  There is an absence of evidence to support her contentions for entitlement to a monetary disability rating for chronic recurrent left arch tendonitis, moderately symptomatic and Saphenous neuralgia of her left leg effective 23 September 1985, the date of her discharge.

5.  Without evidence to the contrary, it is presumed her administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize her rights.  

6.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20110012481





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ABCMR Record of Proceedings (cont)                                         AR20110012481



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