BOARD DATE:	  28 June 2012

		DOCKET NUMBER:  AR20120000343 


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 authority and reason for his discharge to show he was discharged by reason of "disability incurred or aggravated by military service" vice "disability that existed prior to service (EPTS)" as is now indicated on his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states his disability was mislabeled as an EPTS condition and it should have indicated it was incurred or aggravated by military service.

3.  The applicant provides a Department of Veterans Affairs (VA) Compensation and Pension Exam Report and separation orders in support of the application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's request be promptly acted upon because it was improperly administratively closed by the Army Board for Correction of Military Records (ABCMR) on 21 December 2011.

2.  Counsel states the ABCMR mischaracterized the applicant's request in its administrative action and indicated the applicant had to provide VA records to meet the burden of proof, ignoring the VA medical examination report provided by the applicant.

3.  Counsel provides a letter outlining objections to the administrative action in support of the applicant's 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 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 he enlisted in the Regular Army on 9 November 2004 and was assigned to Fort Jackson, South Carolina, to attend basic combat training.

3.  The applicant's official military personnel file (OMPF) is void of medical documents related to the applicant's disability processing.  The record does contain his DD Form 214 that identifies the authority and reason for his discharge.

4.  The applicant's DD Form 214 shows he was discharged on 18 March 2005 by reason of "disability, existed prior to service, medical board" under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 5.  It also shows he completed a total of 4 months and 10 days of active military service.

5.  The applicant provides a VA compensation and pension examination completed on 30 June 2005.  The examining physician notes the applicant's service medical record notes the applicant's condition pre-existed service; however, he indicates there was no evidence of record to confirm this.  He finally diagnosed the applicant with viral myositis and opined it is highly improbable and nearly impossible this condition pre-existed the applicant's military service.  The applicant also provides separation orders that indicate his disability was in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty doing a period of war as defined by law.

6.  Army Regulation 635-40 provides for separation of an enlisted Soldier for 
non-service aggravated EPTS conditions when a Soldier requests a waiver of a physical evaluation board (PEB) evaluation.  The criteria for qualifying for separation under these provisions are that the Soldier meets 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 to change the authority and reason for his discharge to show he was discharged by reason of a disability that was incurred or aggravated on active duty has been carefully considered.  However, there is insufficient evidence to support his claim.

2.  By law and regulation, in order to separate a member for an EPTS disability, it must be based on findings and recommendations of a properly-constituted medical board.  The member must be fully advised of his rights to a disability hearing before the PEB, must voluntarily waive that right, and must voluntarily request expeditious discharge.

3.  The applicant's OMPF is void of medical records or a separation packet documenting his medical separation processing and the applicant failed to provide these records.  The record does contain a properly-constituted DD Form 214 that shows he was discharged under the provisions of chapter 5, Army Regulation 635-40, by reason of disability, EPTS, medical board.  Procedurally, to be separated for this reason the applicant was required to waive consideration of his disability by a PEB and voluntarily request discharge under EPTS disability provisions.

4.  Notwithstanding the VA medical examination and separation orders provided by the applicant, absent evidence of record to corroborate the applicant's assertions, there is insufficient evidence to overcome the presumption of regularity attached to the DD Form 214 issued at the time of his discharge.



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)                                         AR20120000343



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ABCMR Record of Proceedings (cont)                                         AR20120000343



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