IN THE CASE OF:	  

		BOARD DATE:	  27 August 2013

		DOCKET NUMBER:  AR20130000216 


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 removal of the reason for his discharge from his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 29 July 1993.

2.  The applicant states he never failed any physical fitness test.  He was discharged for a medical problem, a bilateral foot condition.

3.  The applicant provides:

* DD Form 214
* service medical records
* training records
* excerpts from his military personnel records
* information documents from the Department of Veterans Affairs

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.  On 12 January 1993, he enlisted in the Regular Army.  He completed basic combat and advanced individual training and was awarded military occupational specialty 63B (Light Wheel Vehicle Mechanic).

3.  The service medical records he provided show he started receiving treatment for his feet in May 1993.  Treatment continued through July 1993.  The applicant's DA Forms 705 (Army Physical Fitness Test (APFT) Scorecard) show he passed his APFT on 14 May 1993 but did not pass on 23 January and 2 February 1993.

4.  On 9 July 1993, an Entrance Physical Standards Board (EPSBD) found that the applicant had bilateral bunions of his feet prior to entering military service.

	a.  Subjective findings included a "stinging to burning pain" in the first metatarsal head areas of his feet, left greater than right, with training and wearing military boots.

	b.  Objective findings included pain with minimally erythematous bumps of medial-dorsal aspects of first metatarsal heads, bilaterally, left greater than right, with slight decreased range of motion of first metatarsal phalangeal joints, bilaterally, left greater than right.

	c.  X-rays showed positive hallux valgus (bunions) bilaterally with degenerative joint disease, left greater than right, metatarsal phalangeal joint areas.

	d.  The diagnosis was hallux abducto-valgus with secondary hallux limitus (stiffness), bilaterally, left greater than right.

	e.  He was issued a permanent physical profile rating of 3 for his lower extremities with the following limitations:  no running, jumping, marching, or lower extremity PT; walking and standing at/to his own pace and tolerance; and wearing shoe gear to tolerance.

5.  The EPSBD found the applicant did not meet medical fitness standards for enlistment under the provisions of Army Regulation 40-501 (Standards of Medical Fitness, paragraph 2-10b(7), and that his condition existed prior to service.  The EPSBD further found the applicant did meet retention standards under the provisions of Army Regulation 40-501, chapter 3, and recommended his separation from military service under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-11, for separation of personnel who did not meet procurement medical fitness standards.

	g.  The findings were approved on 13 July 1993.

6.  On 19 July 1993, the applicant acknowledged he was informed of the findings of the EPSBD and advised that legal counsel from an Army attorney was available to him or he could consult a civilian attorney at his own expense.  He was further advised that he could request discharge from the Army without delay or retention on active duty.  The applicant concurred with the proceedings and requested discharge from the Army without delay.

7.  The appropriate authority approved his separation.  He directed the issuance of an Honorable Discharge Certificate and the applicant's transfer to the Individual Ready Reserve to complete his military service obligation.

8.  On 29 July 1993, he was released from active duty.  Block 26 (Separation Code) of his DD Form 214 contains the separation program designator (SPD) code LFT.  Army Regulation 635-5-1 (Separation Program Designator Codes) specifies the narrative reason for SPD code LFT as "did not meet procurement medical fitness standards – no disability."  The authority for this SPD is Army Regulation 635-200, paragraph 5-11.

9.  Army Regulation 40-501 prescribes the medical conditions and physical defects which are causes for rejection for appointment, enlistment, and induction into military service.  Paragraph 2-10b(7) states that one of the causes for rejection for appointment, enlistment, and induction is hallux abducto-valgus, if severe and associated with marked exostosis or bunion.

10.  Army Regulation 635-200 provides 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 or active duty for training or initial entry training will be separated.  Such conditions must be discovered during the first 6 months of active duty and will result in an EPSBD proceeding.

11.  A medical proceeding, 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
* the condition would have permanently or temporarily disqualified the Soldier for entry into military service had it been detected at that time
* the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501, chapter 3

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show he passed one of his APFT's.  However, his separation was not based solely on whether he could pass the APFT.

2.  An EPSBD established:

* a diagnosis of hallux abducto-valgus with secondary hallux limitus, bilaterally, left greater than right, was identified by an appropriate medical authority within 6 months of his initial entrance on active duty 
* the condition would have permanently or temporarily disqualified him for entry into military service had it been detected at that time 
* the medical condition did not disqualify him from retention in the service

3.  The applicant concurred with the EPSBD proceedings and requested discharge from the Army without delay.  Therefore, his administrative separation was accomplished in compliance with applicable regulation with no indication of procedural errors that would tend to jeopardize his rights.

4.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  The reason for his separation was appropriate considering all the facts of the case.

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 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)                                         AR20130000216



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ABCMR Record of Proceedings (cont)                                         AR20130000216



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