IN THE CASE OF:	  

		BOARD DATE:  2 August 2012

		DOCKET NUMBER:  AR20110022607 


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 narrative reason for separation be changed and his Separation Program Number (SPN) of 375 - "discharge due to failure to meet medical fitness standard at time of enlistment" be changed to SPN 660 -"physical disability discharge - entitlement to severance pay."

2.  The applicant states if the proper protocol had been followed he would have received definitive medical care and possibly been retained in the Army.  At the very least, his separation date would have been later than 3 August 1978 and he would have met the required number of days to seek employment and veterans benefits.  He contends he was not given that opportunity; he was released with no insurance or job opportunities.  It was only after he had been denied [benefits] due to not having served enough time on active duty that the Board of Veterans Appeals, Department of Veterans Affairs (VA) found his injury was service connected and service aggravated.  It was at this time that he realized the SPN on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) needed to be corrected.

3.  The applicant provides:

* DD Form 214, effective 3 August 1973
* Army Regulation 40-501 (Standards of Medical Fitness) page 7
* Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) page 6


* Extract from a Medical Evaluation Board Glossary
* Physical Category designations
* DA Form 3349 (Medical Condition - Physical Profile Record)
* DA Form 8-118 (Medical Board Proceedings), dated 9 July 1973
* DD Form 4 (Enlistment Contract)
* VA Appeals document, dated 15 October 2000

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 Regular Army on 28 June 1973.  His enlistment contract shows in item 25 (Physical Profile) the entry "111111."

3.  His medical records are not available for review but his personnel records contain a Narrative Summary, dated 9 July 1973.  This document shows that during his first week of basic combat training he was evaluated as an outpatient for back and right leg pain.  The notes state the "Pt injured back in Jan 73 and has had back and right leg pain since that time."  He was diagnosed with sciatica secondary to a previous back injury.

4.  The military physician opined that he did not meet procurement standards according to Army Regulation 40-501 (Standards of Medical Fitness), chapter 2, paragraph 2-36d and recommended he appear before a Medical Evaluation Board (MEB) for consideration of separation from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 5 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 9.

5.  On 9 July 1973, an MEB confirmed his diagnosis and found he was unfit for further military service.  The MEB also found his condition existed prior to service (EPTS) and it was not caused by or aggravated by active service.
6.  On the same date, he was notified of the preliminary findings of the MEB and he requested to be separated under the provisions of Army Regulation 635-200, chapter 5.  In his discharge request, the applicant acknowledged that he:

* understood his medical condition existed prior to his entry on active duty
* understood his medical condition was neither incident to nor aggravated by his military service
* agreed with the preliminary findings of the MEB concerning his medical unfitness
* would not be entitlement to disability benefits from the Army but he could apply for VA benefits

7.  The MEB recommended he be separated under the provision of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 5, due to being medically unfit for induction.  The MEB findings and recommendation were approved by the appropriate medical authority on 16 July 1973.

8.  On 18 July 1973, he concurred with the board's findings and recommendation.  He also indicated in item 24 of his DA Form 8-118 that he did not desire to continue on active duty.  His discharge request was complied with on 18 July 1973.

9.  On 3 August 1973, he was honorably discharged under the provisions of Army Regulation 635-200, chapter 5, section III, by reason of not meeting medical fitness standards at time of enlistment.  He completed 1 month and
6 days of total active service.

10.  There is no evidence to show he was ever hospitalized while on active duty.

11.  He provides:

   a.  Army Regulation 635-40, paragraph 3-6, dated 8 February 2006, which addresses length of stay in the hospital and states providing definitive care to Soldiers requiring prolonged hospitalization who are unlikely to return to active duty is not within the Department of the Army mission.  The time at which the Soldier should be processed for disability retirement must be decided on an individual basis. 
   
   b.  Army Regulation 40-501, paragraph 2-10, dated 14 December 2007/Rapid Action Revision, dated 23 August 2010 pertains to the limitation of motion and prescribes that ranges of motion less than 90 degrees for the flexion do not meet the physical standard for enlistment.
   
   c.  Definitions for the terms "maximum hospital benefits" and "optimum hospital improvement" from an internet web page.
   
   d.  Physical Category designations from an unknown source.
   
   e.  His DA Form 3349 contains highlighted entries that show he received a "P3" profile for his lower extremities.  His defect was listed as sciatica and his condition restricted him from overhead work, pull-ups, push-ups, conducting strenuous activities, crawling, stooping, running, jumping, marching or standing for long periods, and all assignments requiring the handling of heavy materials including weapons.
   
   f.  A Board of Veterans' Appeals decision shows that board could not find that the negative evidence amounted to "clear and unmistakable" evidence that his preexisting back disorder was not aggravated by service, particularly in light of all the other evidence of record.  The presumption of aggravation was not overcome in his case and the board determined service connection was warranted.

12.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.

13.  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 provides for MEB's which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.



14.  Chapter 9 of Army Regulation 635-40, in effect at the time of the applicant's discharge, provided the procedures for the expeditious discharge for disabilities that were EPTS.  It provided that when an enlisted member on active duty was believed to be incapable of performing his or her duties with reasonable effectiveness because of a disability, which was believed not to have been aggravated during any period of active service, the commander concerned would initiate action to request a physical examination.  The medical examination would be forwarded to a medical board for use in consideration of the case and a medical board evaluation would be accomplished.  It further stated that when the medical board recommended a member's separation because of medical unfitness which existed prior to entry into military service or which was incurred when the member was not entitled to basic pay and which had not been aggravated by such service, the medical treatment facility commander would cause the member to be offered the opportunity for expeditious separation, if he or she was otherwise eligible.

15.  This regulation further 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.

16.  Army Regulation 635-200, chapter 5, provided that individuals who were not medically qualified under procurement medical standards when accepted for induction or initial enlistment would be discharged when a medical board, regardless of the date completed, established 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 him for entry into the military service had it been detected at that time, and did not disqualify him for retention in the military service under the provisions of Army Regulation 40-501, chapter 3.

17.  Army Regulation 635-5 (Separation Documents), in effect at the time, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN to be entered on the DD Form 214.  It stated that the SPN of 375 was the appropriate SPN to assign to Soldiers separated under the provisions of Army Regulation 635-200, by reason of failing to meet medical fitness standards at time of enlistment, with a corresponding reentry eligibility (RE) code of "3."

18.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA has neither the authority nor the responsibility for 
determining physical fitness for military service.  It awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his narrative reason for discharge be changed to show "physical disability discharge - entitlement to severance pay."

2.  The applicant cites regulatory guidance relating to physical profiles, range of motion, and processing Soldiers for disability retirement or separation when it has been determined the Soldier can no longer benefit from hospitalization.  This information was reviewed and found not to be applicable to his situation because there is no available evidence to indicate he was ever hospitalized or that his medical condition warranted hospitalization.

3.  He contends that had proper protocol been followed he would have been provided definitive medical care and possibly retained in the Army.  In support of his contention he provided his enlistment contract which shows he had no physical limitations at the time of enlistment.  In addition, he provided a copy of the medical profile he was issued as part of his medical evaluation.  This document shows his back condition was considered permanent, existed prior to entry in service, and significantly limited his ability to perform his duties.

4.  The record of evidence shows he was on active duty approximately one month.  Shortly after entrance on active duty, competent medical authority determined he was medically unfit for entrance on active duty due to a medical condition which was neither incurred in nor aggravated by active military service.  The applicant concurred and requested discharge.  Accordingly, he was discharged without disability benefits from the Army.

5.  As a matter of policy, the Army accepts many members with EPTS conditions on the chance that they can successfully complete training and serve.  When disqualifying symptoms occur during training or shortly after entry on active duty, these individuals are procedurally subjected to separation based on the EPTS condition.
6.  The VA operates under its own policies and may compensate a veteran for any medical condition which is determined to be service related.  Whether a condition was medically disqualifying for retention is not relevant in the VA's determination.  As such, the fact that the VA determined that his medical condition was aggravated by service and awarded him a disability rating for his medical condition does not establish an error in this case.

7.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would have jeopardized his rights.  The type of discharge directed and the reasons for discharge were appropriate considering all of the facts of the case.

8.  In view of the foregoing, his request should be denied.

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)                                         AR20110022607



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ABCMR Record of Proceedings (cont)                                         AR20110022607



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