IN THE CASE OF:	  

		BOARD DATE:  21 June 2012

		DOCKET NUMBER:  AR20110024694 


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 item 11c (Reason and Authority) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he was discharged for a service-connected disability and not because of not meeting medical fitness standards at the time of enlistment.

2.  The applicant states he was injured in a training exercise.  He started to receive service-connected disability in 2004 and in November 2011 he was rated 100 percent unemployable by the Department of Veterans Affairs (VA).  He waited until he received 100 percent disability from the VA to file this application. 

3.  The applicant provides no additional evidence.

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 (RA) on 19 August 1969.  On 10 November 1969, he completed basic combat training at Fort Gordon, GA, and he was assigned to 8th Battalion, 3rd Advanced Individual Training (AIT) Brigade, Fort Gordon, GA, for AIT.

3.  The complete facts and circumstances surrounding his discharge processing are not available for review with this case.  However, his records include a statement, dated 21 November 1969, wherein he acknowledged that he was informed his medical condition was such that he met retention medical fitness standards but did not meet procurement medical fitness standards at the time of his enlistment.  He also acknowledged that he could apply for separation by reason of erroneous enlistment in accordance with Army Regulation 635-200 (Enlisted Separations), paragraph 5-9; or he could decline the opportunity of applying for separation and complete the term of service for which he enlisted.

4.  The applicant signed the statement and checked the box that indicated he requested separation from the service due to erroneous enlistment in accordance with Army Regulation 635-200, paragraph 5-9.

5.  Headquarters, U.S. Army Hospital Specialized Treatment Center, Fort Gordon, GA, letter, dated 15 December 1969, subject: Transmittal of Medical Board Proceedings or Reports, stated the board proceedings pertaining to the applicant were forwarded for separation action in accordance with Army Regulation 635-200, paragraph 5-9.  

6.  He was honorably discharged from active duty on 2 January 1970.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 5, by reason of not meeting medical fitness standards at the time of enlistment.  He completed 4 months and 14 days of creditable active service.

7.  Army Regulation 635-200, paragraph 5-9, in effect at the time, provided for the separation of personnel who did not meet procurement medical fitness standards and stated that:

	a.  Members who were not medically qualified under procurement medical fitness standards when accepted for initial enlistment would be separated when medical proceedings, 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.

	b.  As an exception, a member who had completed basic training and was found to meet the requirements of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, but who requested to complete the period of service for which enlisted may be retained in the service.  Such member would be required to sign a statement electing to complete his period of service, notwithstanding his eligibility for separation under this paragraph. 

8.  Army Regulation 40-501(Standards of Medical Fitness), chapter 3, governs medical fitness standards for enlistment, induction, appointment, retention, and separation, including retirement.  

9.  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 does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The available record confirms that prior to completing AIT the applicant was found to have a medical condition(s) that existed at the time he enlisted in the RA and did not meet fitness standards.

2.  His medical condition(s) was/were found to meet medical fitness standards for retention on active duty and he was given the option to remain on active duty or request separation due to erroneous enlistment.  He requested separation and was accordingly discharged for not meeting medical fitness standards at the time of enlistment.

3.  A disability decision rendered by another agency does not establish an error on the part of the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining the medical condition of a Soldier at the time of discharge.  The VA may award ratings because of a service-connected disability that was incurred in or aggravated by active military service that affects the individual's civilian employability.

4.  His DD Form 214 correctly shows he was discharged under the provisions of Army Regulation 635-200, chapter 5, for not meeting medical fitness standards at the time of enlistment.  Therefore, he is not entitled to the 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)                                         AR20110024694



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ABCMR Record of Proceedings (cont)                                         AR20110024694



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