IN THE CASE OF:	  

		BOARD DATE:  19 June 2012

		DOCKET NUMBER:  AR20110025011 


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 her disability discharge be changed from Existed Prior to Service (EPTS) to disability aggravated by military service.  

2.  The applicant states although she entered the military with her medical condition no one asked her during her separation process whether her condition was aggravated by the military, especially wearing boots.  

3.  The applicant provides a self-authored statement, a DA Form 3947 (Medical Board Proceedings) with accompanying documents, and a current doctor’s statement in support of her request.  

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 record shows she enlisted in the U.S. Army Reserve (USAR) on 23 January 1980, and entered active duty for training on 14 March 1980.  

3.  On 29 April 1980, a Medical Evaluation Board (MEB) determined the applicant suffered from "hallux valgus deformity, bilateral, left greater than right" and did not meet medical enlistment or retention standards.  The MEB also found this was an EPTS condition and it was not caused by or aggravated by active duty service.  The MEB recommended discharge based on the applicant being medically unfit for enlistment or retention.  The MEB findings and recommendation were approved by the appropriate medical authority.

4.  On 29 April 1980, the applicant concurred with the findings and recommendation of the MEB and requested expeditious discharge.  In her discharge request, the applicant acknowledged that she had been fully informed and understood she was entitled to the same consideration and processing as any other member of the Army who was separated for physical disability.  She further acknowledged she understood that this included consideration of her case by the adjudicative system established by the Army for processing disability separations.  However, she elected not to exercise this right.  She also acknowledged she understood that her entitlement to Veterans Administration (VA) benefits would be determined by the VA.  She finally acknowledged that she understood if her discharge request was approved she would be separated by reason of physical disability, EPTS.

5.  The applicant’s discharge request was approved and on 6 May 1980, she was honorably discharged under the provisions of chapter 5, Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of physical disability-EPTS-Medical Board.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued shows she held the rank of private/E-1 and had completed 1 month and 23 days of active service.  

6.  The applicant provides a doctor’s statement indicating she is still being treated for chronic podiatric problems and that she suffers discomfort from boot wear and prolonged weight bearing.  

7.  Army Regulation 635-40 provides for separation of an enlisted Soldier for a non-service aggravated EPTS conditions when a Soldier requests a waiver of a PEB.  The criteria for qualifying for separation under these provisions are that the Soldier meet the following conditions:

* is eligible for referral into the disability system
* does not meet medical retention standards
* disqualifying defect or conditions existed prior to entry in the current period of duty and has/have not been aggravated by such duty
* is mentally competent
* knowledge of information about his or her medical condition would not be harmful to the Soldier's well being
* further hospitalization or institutional care is not required
* after being advised of the right to a full and fair hearing, the Soldier still desires to waive PEB action
* has been advised that a PEB is required for receipt of Army disability benefits, but waiver of the PEB will not prevent applying for VA benefits

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a change of her narrative reason for discharge and correction of her record to show her disqualifying medical condition was aggravated by active service has been carefully considered.  However, there is insufficient evidence to support this request.

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the governing law and regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  The applicant was diagnosed with a disqualifying EPTS medical condition that was not permanently aggravated by military service.  A properly-constituted MEB recommended separation based on the disabling condition.  The applicant concurred with the MEB's findings and recommendations, voluntarily waived consideration of her case by a PEB, and requested discharge by reason of an EPTS condition.

4.  It appears the applicant’s condition was no longer aggravated when she was separated and was no longer required to wear military boots or to stand for prolonged periods of time (marching, standing at attention, etc).

5.  The evidence of record fails to show and the applicant has failed to provide evidence of an administrative error in her separation processing.  As a result, there is an insufficient evidentiary basis to support granting 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)                                         AR20110025011



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ABCMR Record of Proceedings (cont)                                         AR20110025011



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