IN THE CASE OF:	  

		BOARD DATE:	    17 May 2012

		DOCKET NUMBER:  AR20110021051 


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 the reason and authority for his release from active duty be corrected.

2.  The applicant states after a few weeks in boot camp he began to have problems with the standard Army issue boots.  His drill sergeant told him he should request special boots once he got to his duty station.  He states his feet have gotten worse and he is attempting to get treatment through the Department of Veterans Affairs (VA).

3.  The applicant provides:

* prescription from Trinity Marsh Medical Clinic, Dallas, TX
* a statement, dated 9 April 1992, from his friend addressed to the VA

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.  He enlisted in the Regular Army on 31 January 1986 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 31M (Multichannel Communication Equipment Operator).  He was assigned to Company B, 11th Signal Battalion in Germany on 7 August 1986.

3.  On 10 February 1987, he was examined and diagnosed with:

* bilateral severe symptomatic flat feet
* mild allergic rhinitis
* bursitis left shoulder, mild
* high blood pressure (history)

4.  The Narrative Summary for the Medical Evaluation Board (MEB), dated 
10 February 1987, stated he had painful feet when playing basketball as a teenager.  He had developed increasing pain since being in the military, which has significantly impaired his ability as a Soldier.  Arch supports have not helped manage this problem nor has activity modification.

5.  The examiner stated the applicant was unfit for active duty.  The problem of his feet existed prior to service.  He recommended that the applicant be separated from active duty in accordance with chapter 5 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

6.  In February 1987, an MEB found him to be suffering from bilateral flat feet.  The MEB determined his condition originated in childhood, was not incurred while entitled to base pay, existed prior to service, and was not permanently aggravated by service.  He was recommended for separation under the provisions of chapter 5 of Army Regulation 635-40.

7.  The applicant indicated he did not desire to continue on active duty and he agreed with the MEB's findings and recommendation.

8.  On 3 March 1987, he requested he be discharged for physical disability based upon the findings and recommendation of an MEB.  He acknowledged that he had been informed and understood that he was entitled to consideration of his case by a PEB.  He elected not to be considered by a PEB.  He acknowledged that if his request was approved he would be separated by reason of EPTS physical disability and he would receive a discharge in keeping with the character of his service as determined by the separation authority.
9.  On 9 March 1987, the appropriate authority approved his request and directed he be issued an honorable discharge.

10.  On 6 May 1987, he was released from active duty.  He completed 1 year, 
3 months, and 6 days of active service that was characterized as honorable.

11.  Item 25 (Separation Authority) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) contains the entry, "AR 635-200 Para 5-11" (Army Regulation 635-200, paragraph 5-11).  Item 26 (Separation Code) contains the entry "LFT."  Item 28 (Narrative Reason for Separation) contains the entry " Did Not Meet Procurement Medical Fitness Standards."

12.  A letter, dated 11 May 1987, from U.S. Army Transition Point, Fort Jackson, SC requested a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) be issued correcting errors on the applicant's 
DD Form 214.

	a.  Change Item 25 to read Army Regulation 635-40, Chapter 5.

	b.  Change Item 26 to read KFN.

13.  A DD Form 215 was issued on 14 July 1987.  However, it only corrected Item 26 of his DD Form 214 to read KFN.

14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), then in effect, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators that were used for these stated reasons.  

	a.  The SPD LFT, as shown on the applicant’s DD Form DD Form 214, specified the narrative reason for discharge as “Did Not Meet Procurement Medical Fitness Standards” and that the authority for discharge under this separation program designator was Army Regulation 635-200, paragraph 5-11.

	b.  The SPD KFN, as corrected by the DD Form 215, specified the narrative reason for discharge as "Physical disability prior to entry on active duty - Medical Board" and the authority for discharge under this SPD was Army Regulation 635-40, chapter 5.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 5, then it effect, stated an enlisted Soldier may be separated for non-service aggravated condition when:
* he/she requested it
* he/she had been on active duty for more than 30 days
* he/she did not meet medical retention standards as determined by an MEB
* the disqualifying defect or condition existed prior to entry on current period of duty and had not been aggravated by such duty
* he/she waived a PEB evaluation

16.  Army Regulation 635-200 (Personnel Separations), in effect at the time, provided the basic authority for the separation of enlisted personnel.  Paragraph 5-11 specifically provided that Soldiers who were not medically qualified under procurement medical fitness standards when accepted for initial enlistment will be separated.  This regulation further provided that medical proceedings must establish that a medical condition was identified by appropriate medical authority within 4 months of the Soldier’s initial entrance on active duty, that the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at that time, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of Chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  The characterization of service for Soldiers separated under this provision of regulation will normally be honorable, but will be uncharacterized if the Soldier is in an entry level status.

DISCUSSION AND CONCLUSIONS:

1.  He had more than 4 months of active service.  Therefore, he was not eligible for discharge under the provisions of paragraph 5-11 of Army Regulation 635-200.

2.  An MEB determined the applicant was not fit for retention due to his bilateral flat feet.  He indicated he did not desire to remain on active duty.  The MEB recommended he be separated for non-service aggravated, EPTS condition.  He waived a PEB and was discharged.

3.  The change of his SPD to KFN should have also changed the separation authority and the narrative reason for his separation on his DD Form 214.  Therefore, in accordance with Army Regulation 635-5-1 the authority for his separation should be "Army Regulation 635-40, chapter 5" and the narrative reason should be "Physical disability prior to entry on active duty - Medical Board."


BOARD VOTE:

___X____  ___X___  ___X____ GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 by:

	a.  Changing item 25 to read:  Army Regulation 635-40, chapter 5.

	b.  Changing item 28 to read:  Physical disability prior to entry on active duty - Medical Board.




      _______ _  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)                                         AR20110021051



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ABCMR Record of Proceedings (cont)                                         AR20110021051



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