IN THE CASE OF:	  

		BOARD DATE:	  27 June 2013

		DOCKET NUMBER:  AR20120020995 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he received a medical discharge vice showing he was discharged because he did not meet procurement medical fitness standards with an uncharacterized character of service.

2.  The applicant states:

	a.  He learned 30 years after his discharge that it was labeled as an uncharacterized [i.e. entry-level] discharge and he believes his discharge should have been labeled as a medical discharge.

	b.  On 11 July 1977, a motorcycle accident injured both his legs but he went through an intense conditioning regime to prepare his mind and body for a great career in the Army.  It was always his dream to serve in the Army and, in July 1982, he enlisted in the Army.

	c.  During basic combat training (BCT), he was very motivated to excel and along the way he sustained injuries that were considered minor.  Later on they turned out to be not so minor.  One day while in BCT they were running in the rain; he climbed over a training wall, fell from the top, and hurt his left leg and knee.  The drill instructor wasn't very sympathetic and, in so many words, said "I am your mama, your daddy, and your doctor" and to keep moving.  He followed orders but several days later his left knee and leg were still hurting.

	d.  Subsequently, he was on a shooting drill and when he was lying in a prone shooting position he couldn't flatten his left foot into the flat, correct position.  A drill instructor stepped on his leg to flatten it and the applicant told him the leg was injured and hurt.  The instructor said he didn't want to hear that and crybabies didn't belong in the Army.  He gutted it out, graduated from BCT, and went on to advanced individual training (AIT).

	e.  While in AIT, he had another leg injury when a tire fell on his leg.  He reported it and his legs began to hurt more and more.  The doctor put him on restrictions of no standing over 15 minutes and no running, walking, or marching over 1/4 mile.  Later, the same doctor said he was unfit for enlistment and the Army released him.  He was disappointed but he had little recourse as he was medically cleared for separation.

	f.  Since his release from the Army, he always had problems standing for long periods of time so he took a career in commercial truck driving from 1983 to the present.

3.  The applicant provides his DD Form 214, one page titled Progress Notes, and four statements of support. 

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 on 27 July 1982.  On 2 August 1982, he was assigned for BCT to the 2nd Battalion, 3rd Training Brigade, Fort Dix, NJ. 

3.  He completed BCT and on 1 October 1982, he was assigned for AIT to the 3rd Battalion, 5th Training Brigade, Fort Dix, NJ. 

4.  On 18 October 1982, he was issued a temporary profile of no physical training (PT) or running for 2 weeks due to a chronic left ankle sprain.  This profile expired on 1 November 1982.

5.  On 30 November 1982, he was issued a temporary profile of no crawling, stooping, running, jumping, prolonged standing, or marching due to overuse symptoms.  This profile stated the applicant had sustained fractures to both legs that existed prior to his entry in the service (EPTS).  This profile expired on 14 December 1982.

6.  On 16 December 1982, he went before an Entrance Physical Standards Board (EPSBD).  The board found he had an EPTS history of a motorcycle accident 5 years prior with fractures of the right tibia and fibula and left femur and tibia.  He had complained of pain in his left thigh for 2 weeks prior to his original evaluation on 30 November 1982.  The physical examination revealed he had significant pelvic tilt to the left with abnormal gait and moderate hip flexion contractures, bilaterally, of the rectus femoris muscles.  He had a well-healed adherent scar, mid-lateral left thigh, with tenderness.  There was decreased internal rotation of the right hip and decreased external rotation of the left hip.  He had been diagnosed with post-traumatic changes due to fractures of the right tibia and fibula and left femur and tibia suffered in a motorcycle accident 5 years prior (emphasis added).  He had also been diagnosed with overuse syndrome which had been resolved.

7.  The EPSBD determined the applicant's condition was EPTS, he was unfit for enlistment in accordance with Army Regulation 40-501 (Standards of Medical Fitness), and he should be separated from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).

8.  On 20 December 1982, he was informed of the medical findings, that he was authorized to consult with legal counsel, and that he could request to be discharged from the Army without delay or request retention on active duty.  If retained, he could be involuntarily reclassified into another military occupational specialty based upon his medical condition.  The DA Form 4707 (EPSBD Proceedings) shows he had the option to:

* concur with the board proceedings and request to be discharged from the Army without delay
* concur with the board proceedings and request to be retained on active duty
* disagree with the board proceedings because his condition was not EPTS (medical evidence required) and request his case be returned to the medical approving authority for reconsideration
* disagree with the board proceedings because his condition was not disqualifying on entry and was aggravated by his service (medical evidence required) and request his case be returned to the medical approving authority for reconsideration 

9.  On 20 December 1982, the applicant checked the appropriate block on the DA Form 4707 to indicate he concurred with the board findings and recommendations and he requested to be discharged from the Army without delay.  

10.  On 20 December 1982, his immediate commander recommended approval of the applicant's request for an immediate discharge.

11.  On 22 December 1982, the approving authority approved his request for an immediate discharge.  On 6 January 1983, he was discharged accordingly.

12.  The DD Form 214 he was issued shows he was discharged (entry level) on 6 January 1983 by reason of "did not meet procurement medical fitness standards - no disability" with an uncharacterized character of service.  The authority for his discharge was Army Regulation 635-200, paragraph 5-11.  He completed 5 months and 10 days of net active service (160 days).

13.  His records do not contain any evidence and he has not provided any evidence that shows he was involved in any incidents/accidents while serving on active duty that caused additional damage to his legs.

14.  The applicant provides one page titled Progress Notes, dated 6 August 2012, where he was seen at the Department of Veterans Affairs (VA) Clinic, Chattanooga, TN, on that date.  The examining physician noted the applicant's medical history was provided by the applicant and he stated he had been in a motorcycle accident in 1977 with fractures of the right tibia and fibula and left femur and tibia.  He was "okay" until AIT; his legs hurt a lot and started aching (emphasis added).  He fell off of a wall during training and was not allowed an evaluation at that time.  His left knee swelled and both his legs were aching.  During a shooting drill an instructor did not like the way he was positioned and stepped on his left leg and twisted it.  A tire and rim fell from a truck forcing the applicant into a squatting position balancing the tire on both upper thighs. 

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-11 specifically provides that Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment or who became medically disqualified under these standards prior to entrance on active duty, active duty for training, or initial entry training will be separated.  A medical proceeding, regardless of the date completed, must establish that a medical condition was identified by 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 that time, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501.  The characterization of service for Soldiers separated under this provision of the regulation will be uncharacterized if the Soldier is in an entry-level status.  Entry-level status is defined as the first 180 days of continuous active duty.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms that on 16 December 1982 an EPSBD found the applicant's condition of left thigh pain existed prior to his entry into military service and recommended he be discharged for failing to meet medical procurement standards.  He was counseled on the board's findings and recommendation, he concurred with the findings, and he requested immediate discharge from the Army.  On 6 January 1983, he was discharged accordingly.  His DD Form 214 appropriately shows the reason for his discharge as did not meet procurement medical fitness standards - no disability.

2.  Notwithstanding his contention that he was injured in BCT and AIT, there is no evidence in his records that shows he incurred an injury while serving on active duty that caused damage to his legs.  His records show he was treated for a sprained ankle and, after complaining that his legs ached, he was diagnosed with overuse syndrome as a result of his physical condition resulting from previous injuries incurred in a motorcycle accident in 1972.

3.  He provides a record of a VA examination conducted in August 2012 wherein he told the examining physician he was injured during his military service but, other than his self-reported statement from 30 years after his discharge, he did not provide any conclusive evidence that supports this contention.  

4.  On 20 December 1982, he had the option to disagree with the board proceedings because his condition was not EPTS, or because his condition was not disqualifying on entry and was aggravated by his service, and to provide medical evidence to support either option.  However, he concurred with the board findings that his condition was EPTS.  

5.  He entered active duty on 27 July 1982 and he was discharged on 6 January 1983, a period of 160 days.  As he served on active duty for less than 180 days his discharge was an entry level discharge and his character of service was appropriately listed on his DD Form 214 as uncharacterized.

6.  In view of the foregoing, 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)                                         AR20120020995





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ABCMR Record of Proceedings (cont)                                         AR20120020995



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