IN THE CASE OF:	  

		BOARD DATE:	  28 February 2012

		DOCKET NUMBER:  AR20110017278 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a medical discharge.

2.  The applicant states he served in the U.S. Army from 11 June 1981 to 21 July 1981.  He was discharged for a knee injury that was aggravated by his service; the Army discharged him for that reason and gave him an honorable discharge.  However, the reason for his discharge was not put on his DD Form 214.  He is currently seeking medical care through the Veterans Administration (VA).  The VA will not provide him with medical care.  He and the VA believe his discharge should have been for medical reasons.  

3.  The applicant provides:

* Standard Form (SF) 88 (Report of Medical Examination), dated, 20 June 1980
* SF 600 (Chronological Record of Medical Care), dated 27 June 1981
* DA Form 3349 (Physical Profile Board Proceedings), dated 29 June 1981
* Separation orders, dated 20 July 1981
* DD Form 214 and DD Form 214 worksheet

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 records show he enlisted in the Army Reserve (USAR), U.S. Army Delayed Entry Program, for 6 years, on 20 June 1980.  On 12 June 1981, he enlisted in the Regular Army.  He was assigned to Fort McClellan, AL, from 
12 June 1981 to 21 July 1981.  The highest rank/grade he attained while serving on active duty was private/E-2.

3.  His military medical records are not available for review in this case.

4.  He provided an SF 88, dated 20 June 1980, which shows he had an abnormality in the lower extremities.

5.  He provided an SF 600, dated 27 June 1981, which shows he was seen for chronic left knee pain.

6.  He provided a DA Form 3349, dated 29 June 1981.  This form shows he received a temporary (T) physical profile of the lower extremities with a rating of 4 or (T4).  His physical defects were identified as condromalacia (left) and a bone cyst on the left distal femur.

7.  The DA Form 3349 states his profile limitations were to remain in effect until completion of the Medical Evaluation Board (MEB).  His profile limited his physical activity as follows:

* No crawling
* No stooping
* No running
* No jumping
* No prolonged standing or marching (time permitted - 10 minutes)
* No mandatory strenuous physical activity

8.  His records contain a DA Form 2496 (Disposition Form), dated 1 July 1981.  This form shows he requested separation in accordance with Army Regulation 40-3 (Medical, Dental, and Veterinary Care), paragraph 6-6e(3), by reason of erroneous enlistment under Army Regulation 635-200 (Enlisted Personnel Separation), paragraph 5-7 (Separation of personnel who did not meet procurement medical fitness standards).

9.  He further stated in his request he had been informed that even though he did not meet procurement medical fitness standards at the time he enlisted, he could request retention on active duty to complete the period of service for which he enlisted.  However, he declined to apply for retention.

10.  His discharge packet is not available for review in this case.

11.  His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 5-7c(2) discharge of personnel who did not meet procurement medical fitness standards, and his characterization of service was honorable.  This form shows he completed a total of 1 month and 10 days of creditable active service.

12.  Army Regulation 635- 200 states that medical proceedings, regardless of the date completed, must establish that a medical condition was identified by an appropriate military medical authority within 6 months of the Soldier’s initial entrance on active duty for Regular Army or during active duty for training for initial entry training for Army National Guard and USAR Soldiers that would have permanently or temporarily disqualified the Soldier for entry into the military service or entry on active duty or active duty for training for initial entry training had it been detected at that time; and does not disqualify the Soldier for retention in the military service per Army Regulation 40–501, chapter 3.
13.  Army Regulation 635-200, chapter 5, in effect at the time, sets forth the conditions under which enlisted personnel may be discharged, released from active duty or active duty for training, or released from military control, for the convenience of the Government with service characterized as honorable or under honorable conditions, as appropriate.  Paragraph 5-7c(2) (Separation of personnel who did not meet procurement medical fitness standard ), states separation will be accomplished within 72 hours following approval by the separation authority.  Members who have not completed basic training or 8 weeks of one station unit training, and those who have completed their military service obligation will be discharged.
14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states the medical treatment facility commander with primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

DISCUSSION AND CONCLUSIONS:

1.  The applicant argued he was discharged for a knee injury that was aggravated by his service; his reason for discharge was not put on his DD Form 214, and he should have received a medical discharge.  

2.  His DA Form 3349 shows he was pending or in the process of an MEB.  Since his full medical records and separation packet are not available to the board, administrative regularity must be presumed in this case.  

3.  Therefore, it is reasonable to presume the medical proceedings, established his medical condition was identified by an appropriate military medical authority within 6 months of his initial entrance on active duty and that this condition would have permanently or temporarily disqualified him for entry into the military service or entry on active duty had it been detected at that time and that the condition disqualified him for retention.  In other words, this condition existed prior to his entry on active duty.

4.  His narrative reason for separation was assigned based on the fact that he was separated under the provisions of paragraph 5-7c(2).  Absent the medical condition, there was no fundamental reason to discharge him.  The underlying reason for his medical; review was his condition.  The only valid narrative reason for separation permitted under that paragraph is "discharge of personnel who did not meet procurement medical fitness standards."  Therefore, the applicant received the proper narrative reason for separation.

5.  Item 28 (Narrative Reason for Separation) of his DD Form 214 shows he was medically discharged.  A discharge for personnel who do not meet procurement medical fitness standards is classified by the Army as a type of medical discharge.

6.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making the applicant eligible for veterans' or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

7.  In view of the foregoing evidence, the applicant's narrative reason is correct as shown on his DD Form 214 and there is no reason to change it.
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)                                         AR20110017278





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ABCMR Record of Proceedings (cont)                                         AR20110017278



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