IN THE CASE OF:	  

		BOARD DATE:	  1 March 2012

		DOCKET NUMBER:  AR20110017078 


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 medically fit when he was enlisted into the Army on 18 August 1970.  He sustained an injury after he entered the Army; however, medical officials stated his injury did not occur while he was serving in the Army. He concludes he would not have been eligible for military service if he had a broken bone and swelling in his wrist prior to entering the Army.

3.  The applicant provides copies of nine Army medical records 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.  A Standard Form (SF) 89 (Report of Medical History), dated 29 July 1970, completed by the applicant shows in:

	a.  item 20 (Have you ever had or have you now?), in response to the entry "History of broken bones" the applicant indicated "Yes";

	b.  item 31 (Have you had, or have you been advised to have, any operations?), the applicant indicated "Yes" and entered "Gunshot wounds in left hand and abdomen";

	c.  item 34 (Have you consulted or been treated by clinics, physicians, healers, or other practitioners within the past 5 years?), the applicant indicated "Yes" and entered "Gunshot - Doctor's Hospital"; and

	d.  item 39 (Physician's summary and elaboration of all pertinent data) shows the examining physician made note of the applicant's gunshot wound.

	e.  The applicant and examining physician each placed their signature on the document.

3.  An SF 88 (Report of Medical Examination), dated 29 July 1970, shows the applicant was found qualified for enlistment in the Army.

4.  A DD Form 4 (Enlistment Contract - Armed Forces of the United States) shows the applicant enlisted in the Regular Army on 18 August 1970 for a period of 3 years and training in Army career group 13 (artillery).

5.  An SF 88, dated 28 August 1970, completed for the purpose of the applicant's Medical Evaluation Board (MEB) shows in the Clinical Evaluation section:

	a.  item 35 (Upper Extremities) an "x" in the "Abnormal" column and the entry "7331-441 - Comminuted navicular fracture with nonunion on the left wrist";

	b.  item 74 (Summary of Defects and Diagnoses):  "(item) 35.  7331-441 - Comminuted navicular fracture with nonunion on the left wrist"; and

	c.  item 77 (Examinee) an "x" in the block for "is not qualified for" and the entry "enlistment in accordance with paragraph 2-11d(2), chapter 2 (Physical Standards for Enlistment, Appointment, and Induction), Army Regulation 40-501 (Standards of Medical Fitness)."

	d.  The examining physician placed his signature on the document.


6.  A DA Form 3349 (Medical Condition - Physical Profile Record) shows the applicant was issued a temporary profile for "comminuted navicular fracture with nonunion left wrist" on 28 August 1970.  The physician directed no assignment requiring prolonged handling of heavy material, including weapons; no overhead work; and no pull-ups or push-ups.  The temporary profile was effective until MEB processing was complete.

7.  On 28 August 1970, the applicant submitted a request for discharge from military service under the provision of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-9a(2).  He indicated he felt he was erroneously enlisted since he did not meet medical fitness standards of Army Regulation 40-501, chapter 2.

8.  An SF 502 (Clinical Record - Narrative Summary), dated 4 September 1970, shows in the "History of Present Illness" the physician entered "[Applicant] has a history of a gunshot wound to the left wrist on 28 May 1970 by a .32 automatic.  He has pain in the left wrist with push-ups and overhead bar exercises and pain with any pressure on the left wrist."

	a.  The physical examination shows, "Essentially unremarkable with the exception of upper extremity examination.  Flexion, left wrist - 70 degrees; extension - 80 degrees; ulnar deviation - 40 degrees; radial deviation –
10 degrees with severe pain."

	b.  The diagnosis shows "7331-441 - Comminuted navicular fracture with nonunion on the left wrist."

	c.  The physician recommended the applicant be referred to an MEB as he was unfit for induction/enlistment in accordance with Army Regulation 40-501, chapter 2, paragraph 2-11d(2).

9.  A DA Form 8-118 (Medical Board Proceedings), dated 14 September 1970, shows the applicant:

	a.  had a comminuted navicular fracture with nonunion on the left wrist;

	b.  was medically fit for further military service in accordance with current medical fitness standards (Army Regulation 40-501, chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement)); and

	c.  the MEB recommended the applicant for separation in accordance with Army Regulation 40-3 (Medical Services - Medical, Dental, and Veterinary Care), paragraph 54e(3).
10.  On 14 September 1970, the findings and recommendation of the MEB were approved.

11.  On 15 September 1970, the applicant acknowledged he was informed of the approved findings and recommendation of the MEB and he placed his signature on the document.

12.  On 18 September 1970, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, paragraph 5-9a(2).

13.  Special Orders Number 263, issued by Headquarters, U.S. Army Training Center, Fort Campbell, KY, dated 21 September 1970, discharged the applicant from the U.S. Army effective 24 September 1970 based on failing to meet medical fitness standards at the time of enlistment.

14.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the applicant was honorably discharged on 24 September 1970.  He completed 1 month and 7 days of total active service.  Item 11c (Reason and Authority), shows he was discharged under the provisions of Army Regulation 635-200, paragraph 5-9, because of failing to meet medical fitness standards at time of enlistment.

15.  In support of his application, the applicant provides an SF 600 (Health Record - Chronological Record of Military Care), dated 27 August 1970, and an SF 513 (Consultation Sheet), dated 27 August 1970, that show he complained of swelling and a possible fracture of his left wrist.

	a.  The physician noted the applicant had a history of a gunshot wound to his left wrist on 28 May 1970.

	b.  The physical examination revealed, "Flexion - 70 degrees, Extension -
80 degrees, Ulnar Deviation - 40 degrees, Radial - 10 degrees with severe pain."

	c.  The physician's impression was "Comminuted navicular fracture with nonunion on the left wrist."

	d.  He indicated the "Plan" was for the applicant to be referred to an "EPTS" (Existed Prior To Service) Board.

16.  Army Regulation 40-501 provides information on medical fitness standards 

	a.  Chapter 2 governs medical fitness standards for enlistment, induction, and appointment.  It shows for upper extremities - limitation of motion, that current joint ranges of motion less than the listed measurements do not meet the standard.  It shows for "Wrist":  a total range of 60 degrees (extension plus flexion) or radial and ulnar deviation combined arc 30 degrees.

	b.  Chapter 3 governs medical fitness standards for retention and separation, including retirement.  It shows for upper extremities, the causes for referral to an MEB for "Wrist":  a total range extension plus flexion of 15 degrees.

17.  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 initial enlistment will be separated when medical proceedings, regardless of the date completed, establish that a medical condition was identified by appropriate military medical authority within 4 months of the member's initial entrance on active duty which would have permanently disqualified the individual 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, chapter 3.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that 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.

	a.  On 29 July 1970, the applicant acknowledged he had a medical history of a gunshot wound to his left hand (and abdomen).  The examining physician confirmed the applicant had sustained the gunshot wound prior to his entry on active duty.


	b.  The applicant enlisted in the U.S. Army on 18 August 1970.

	c.  On 27 August 1970, he was seen by medical officials for swelling and a possible fracture of his left wrist.  The applicant's medical history of a gunshot wound to his left wrist was noted by the examining physician and the physician recommended referral of the applicant to an MEB.

	d.  On 28 August 1970, the applicant requested 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.

	e.  On 14 September 1970, the MEB found the applicant medically fit for retention in military service.  However, the MEB recommended separation of the applicant due to him not being medically qualified under procurement medical fitness standards when he was accepted for enlistment.

	f.  On 18 September 1970, the separation authority directed that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 5-9, for failing to meet 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.  There is no evidence of record, and the applicant provides insufficient evidence, that shows his left wrist condition was due to an injury incurred while on active duty.  Therefore, he is not entitled to a medical discharge.

5.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20110017078



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ABCMR Record of Proceedings (cont)                                         AR20110017078



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