IN THE CASE OF:	  

		BOARD DATE:	    10 September 2013

		DOCKET NUMBER:  AR20130001837 


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 her records to show she was injured while on active duty and issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) for this period of active duty.

2.  She states:

	a.  she feels this injustice needs to be corrected because she was injured during her active duty period and she was sent home.

	b.  she was unable to finish what she had started.  She's now trying to get the help that she needs, but she can't get it.  She started [seeking help] in 2009.

	c.  she has been told by personnel at Fort Knox, KY and her congressman's office that she should not have been sent into any military situation.  However, she was sent anyway and she was injured during this period.

	d.  she has been trying to get her DD Form 214 for over 2 years.

3.  She provides no additional documents.

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 enlisted in the U.S. Army Reserve (USAR) on 12 April 1982 for a period of 6 years.  She was ordered to active duty for initial entry training on 12 October 1982.

3.  Her record contains a DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings), dated 15 November 1982.  It shows the EPSBD found the applicant was medically unfit for enlistment in accordance with current medical fitness standards.  In the opinion of the evaluating physicians, the condition(s) existed prior to service.  The EPSBD proceedings indicated the applicant had a history of mid-thoracic back pain intermittently for the previous
2 years with appreciation of scoliosis by a private physician.  She complained of exacerbation of her mid-upper thoracic back pain during basic training with pushups, sit-ups, prolonged standing, and heavy lifting.  She was diagnosed with symptomatic kyphoscoliosis and was given a physical profile of 131111.

4.  The EPSBD indicated the applicant did not meet the medical fitness standards for enlistment in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraph 2-36c(5).  The applicant was given a permanent profile of "131111."  The appropriate medical approving authority approved the findings on 15 November 1982.

5.  On 15 November 1982, the applicant acknowledged that she had been informed of the medical findings and indicated she understood that legal advice of an attorney employed by the Army was available to her or that she could consult civilian counsel at her own expense.  She also indicated she understood that she could request to be discharged from the U.S. Army without delay or request retention on active duty.  On 15 November 1982, by her initials and signature, she concurred with the proceedings and requested to be discharged from the U.S. Army without delay.  The unit commander recommended the applicant be discharged from the service.  


6.  On 15 November 1982, the appropriate discharge authority directed the applicant be discharged from the Army.  She was discharged accordingly.  Her discharge orders from the USAR are not available for review.

7.  Her service record is void of evidence that shows she served on active duty for 90 or more consecutive days or that she was issued a DD Form 214 for service on active duty.

8.  In a 17 October 2012 letter, the Chief, Army Personnel Records Division, U.S. Army Human Resources Command, Fort Knox, responded to a congressional inquiry regarding the applicant's request for a copy of her DD Form 214.  The official stated the applicant was discharged from the USAR when she was in basic training.  After reviewing her personnel and medical records, there was no evidence she served 90 or more consecutive days on active duty that makes her ineligible for a DD Form 214.

9.  Army Regulation 635-5 (Separation Documents), paragraph 2-1 states that the DD Form 214 is a summary of a Soldier’s most recent period of continuous active duty.  It provides a brief, clear cut record of active duty service at the time of release from active duty, retirement, or discharge.  A DD Form 214 will be prepared for Reserve Component Soldiers completing 90 days or more of continuous active duty for training.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the USAR on 12 April 1982 and entered active duty for training on 12 October 1982.  She was evaluated by an EPSBD on
15 November 1982.

2.  The EPSBD determined the applicant was medically unfit for enlistment due to symptomatic kyphoscoliosis in accordance with current medical fitness standards.  Competent medical authority determined her medical condition existed prior to service.

3.  The applicant's discharge was administratively correct and in conformance with applicable regulations.

4.  Her service record is void of evidence and she did not provide any evidence that shows she served 90 or more consecutive days on active duty.


5.  The applicant also failed to show through the evidence submitted or the evidence of record that an error or injustice exists in this case.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20130001837



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ABCMR Record of Proceedings (cont)                                         AR20130001837



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