IN THE CASE OF:	  

		BOARD DATE:	  14 June 2012

		DOCKET NUMBER:  AR20110025032 


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 the narrative reason for his discharge from Army Regulation 635-200 (Personnel Separation), paragraph 5-9, to medical discharge.

2.  The applicant states he had underlying medical reasons to include a back injury that should have been included as the reason for his discharge.  A medical discharge would also qualify him for State benefits.

3.  The applicant provides:

* 2008 Department of Veterans Affairs (VA) Rating Decision
* DD Form 214 (Report of Separation from Active Duty)
* Statement of Medical Condition
* Request for Expeditious Discharge
* Standard Form 88 (Report of Medical Examination) – medical board physical
* Standard Form 502 (Narrative Summary (NARSUM))
* DA Form 3947 (Medical Evaluation Board (MEB))
* Standard Form 600 (Chronological Record of Medical Care)
* Standard Form 88 – enlistment physical

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 underwent an enlistment physical at the Milwaukee Military Entrance Processing Station on 17 October 1975 and was qualified for enlistment.  The medical examiner noted the applicant had defective vision and acne scarring on his face and trunk.

3.  He enlisted in the Regular Army on 24 October 1975 and he was subsequently assigned to Fort Jackson, SC, for training.

4.  On 21 November 1975 while in training, the applicant was admitted to Moncrief Army Hospital.  He had a long history of difficulty with hidradenitis suppurativa (also known as acne inversa – a chronic disease of a type of sweat gland).  This condition was well controlled prior to his military service; however, it flared up since starting basic combat training.

5.  His NARSUM shows he underwent a physical examination and he was noted to be within the normal limits except for his skin which revealed keloidal scarring in sites of prior cystic acne lesions.  The military physician diagnosed him with chronic, symptomatic upper back and chest hidradenitis suppurativa and noted it existed prior to service (EPTS).  The military physician opined that the applicant did not meet the retention standards of chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness) and recommended his discharge from the service.

6.  On 26 November 1975, an MEB convened at Moncrief Army Hospital, Fort Jackson.  After consideration of the clinical records, laboratory findings, and medical examination, the MEB found the applicant was medically unfit due to a skin disease.  He had chronic symptomatic upper back and chest hidradenitis suppurativa that was EPTS.  The MEB recommended his separation under the provisions of chapter V of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The applicant agreed with the MEB's findings and recommendation and indicated he did not desire to continue on active duty.

7.  On 24 November 1975, the applicant requested an expeditious discharge from the Army by reason of physical disability.  He indicated that:

* he was informed that based on the findings and the recommendations of the MEB, he was considered unfit for military service by reason of physical disability that was EPTS and was neither incident nor aggravated by military service
* he was fully informed and understood he was entitled to the same consideration and processing as any other member who is separated for physical disability
* he understood he was entitled to consideration of his case by the adjudicative system established by the Army for processing disability separation
* he elected to exercise his right to be discharged
* he understood that entitlement to VA benefits would be determined by the VA
* if his separation were approved, he would be separated by reason of physical disability that was EPTS and would receive a discharge commensurate with the character of his service

8.  On 1 December 1975, the applicant was accordingly discharged.  His DD Form 214 shows he was discharged by reason of physical disability that was EPTS by authority of paragraph 5-9 of Army Regulation 635-200.  He completed 1 month and 8 days of active service.  Item 9c (Authority and Reason) of this form shows the entry "PARA 5-9, AR 635-200, SPD JFT."

9.  On 9 August 2008, the VA awarded him service-connected disability compensation for various conditions including degenerative disc disease, depressive disorder, left knee fracture, and gastro-esophageal reflux disorder.

10.  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.

11.  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.

12.  Army Regulation 635-40 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.

13.  Army Regulation 635-200 provides the Army’s enlisted separation policy.  Chapter 5 provides that Soldiers who are not medically qualified under procurement medical fitness standards when accepted for enlistment, or who became medically disqualified under these standards prior to entry on active duty, active duty for training, or initial entry training will be separated.  Paragraph 5-9, in effect at the time, provided the policy for expeditious separation from the Army.  A medical proceeding conducted by an Entrance Physical Standards Board, regardless of the date completed, must establish that a medical condition was identified by an appropriate medical authority within 6 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 the time of enlistment, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501, chapter 3.

14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. 
The regulation in effect at the time identified the SPD code of JFT as the appropriate code to assign to assign to Soldiers separated under the provisions of chapter 5, Army Regulation 635-200, who did not meet procurement medical fitness standards.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant suffered from a medical condition that rendered him unable to satisfactorily perform the duties of his grade and military specialty.  According to accepted medical principles, the manifestation of a chronic disease from the 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) is accepted as proof that the disease existed prior to entrance into active military service.  Consequently, his records were evaluated by an MEB.

2.  By regulation, there is a presumption that a Soldier was in sound physical and mental condition upon entering active service (presumption of soundness) except for physical disabilities noted and recorded at the time of entry or when there is an evidence of an EPTS condition that is discovered shortly after entry on active duty.  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 subject to separation based on the EPTS condition.

3.  The applicant's MEB clearly shows he suffered a medical condition that was determined to have been EPTS, was not aggravated by service, and was not incurred in the line of duty.  The medical board diagnosed him as unfit for retention.  He voluntarily requested expeditious discharge by reason of physical disability of an EPTS medical condition.  Due to this EPTS condition and, having met the criteria of chapter 9 of Army Regulation 635-40 in effect at the time, the separation authority approved his discharge.

4.  There is no evidence suggesting the applicant ever requested a hearing before a physical evaluation board (PEB), which was his right to do.  To the contrary, the evidence confirms he voluntarily requested expeditious discharge due to his EPTS medical condition, which, in effect, confirms he elected not to demand a PEB hearing of his case and he agreed to the EPTS aspects of his condition which had been established by a medical board.

5.  His narrative reason for separation was assigned based on his separation due to his EPTS condition  The only valid narrative reason for separation permitted under that paragraph is "Army Regulation 635-200, paragraph 5-9," with a corresponding SPD code of "JFT."  Therefore, the applicant received the proper narrative reason for separation.

6.  The ABCMR does not correct records solely for the purpose of establishing entitlements to other programs or benefits.  The applicant did not provide any evidence or a sufficiently mitigating argument to warrant a change in the narrative reason for his separation.  Therefore, he is not entitled to 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 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)                                         AR20110025032



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ABCMR Record of Proceedings (cont)                                         AR20110025032



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