IN THE CASE OF:	  

		BOARD DATE:	  4 October 2012

		DOCKET NUMBER:  AR20120003140 


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 that his reason for separation be changed to medical.

2.  He states that if he was healthy enough to enlist, he should have been healthy enough to remain in the military.  According to the Army, his injuries in the military rendered him unfit to serve.  Therefore, he should have been given a medical discharge.

3.  He provides no additional documentation.

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.  His military records show he enlisted in the Regular Army on 20 December 1972.  He did not complete basic training.
3.  His records contain a DA Form 2496 (Disposition Form), subject: Request for Separation or Release from Active Duty under Provisions of Paragraph 5-9, Army Regulation 635-200 (Personnel Separations), dated 11 January 1973.  This form shows he requested discharge under provisions of paragraph 5-9 of Army Regulation 635-200 and paragraph 2-10d(2) of Army Regulation 40-501 (Standards of Medical Fitness) for physical reasons which existed prior to his enlistment in the Army.  The form further shows he stated that he had foot problems which were known to him for approximately 13 years prior to his enlistment in the Army.  He indicated he did not desire to be present for the medical board hearing in his case.

4.  His record is void of any medical documents from his active duty service which are related to his discharge.

5.  His complete discharge packet is not available.  However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 18 January 1973 under the provisions of Section III, Chapter 5, Army Regulation 635-200, with an honorable discharge.  He was given a separation program number (SPN) of 375, discharge because of not meeting medical fitness standards at time of enlistment.  This form shows he completed 29 days of active service.

6.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Paragraph 5-9, in effect at the time, provided for the discharge of personnel who did not meet the medical fitness standards for enlistment.  Specified commanders were authorized to order discharge of individuals who were not medically qualified under procurement medical fitness standards when accepted for initial enlistment.  Eligibility for discharge was governed by the following:

	a.  A medical board finding that the individual had a medical condition which would have permanently disqualified him for entry in the military service had it been detected at that time but did not disqualify him from retention in the military service under the provisions of chapter 3, Army Regulation 40-501.

	b.  A request for discharge would be submitted by the individual to his unit commander within 4 months from the date of initial entry on active duty. 

	c.  Members who did not meet retention medical fitness standards would be processed under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

7.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System according to the provisions of Title 10, U.S. Code, chapter 61, and Department of Defense Directive 1332.18.  It 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.

8.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  His records show he was discharged under the provisions of Army Regulation 635-200, paragraph 5-9, because of not meeting medical fitness standards at time of enlistment.

2.  There are no medical records related to his discharge which are available for review.  However, a disposition form completed in conjunction with his separation shows he voluntarily requested discharge for physical reasons which existed prior to his enlistment in the Army, specifically foot problems which were known to him for approximately 13 years prior to his enlistment in the Army.  He indicated at the time of his separation processing that he did not desire to be present for the medical board hearing in his case.

3.  There is no evidence he incurred an injury or other medical conditions during his military service which would have warranted a medical discharge.  His record contains no indication of procedural or other errors that would have jeopardized his rights.

4.  The Board starts its consideration with a presumption of regularity, that what the Army did was correct.  The burden of proving otherwise is the responsibility of the applicant.  Therefore, it is presumed that the reason for discharge as shown on his DD Form 214 is correct and that he was properly discharged.

5.  In view of the foregoing, there is no basis for granting the applicant's request.


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)                                         AR20120003140



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ABCMR Record of Proceedings (cont)                                         AR20120003140



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