IN THE CASE OF:	  

		BOARD DATE:	 17 October 2013 

		DOCKET NUMBER:  AR20130002443 


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 his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) reason and authority for separation and deletion of the continuation remark for item 11c (Reason and Authority) in item 30 (Remarks).  He also requests correction of his medical records to reflect that he met medical fitness standards at the time of his enlistment.

2.  The applicant states he had physical examinations every year to be eligible to play sports in school with no issues.  He was also thoroughly examined at the time of his enlistment and there were no problems.  On 12 October 1971, he was found to be physically fit for enlistment.

3.  The applicant provides:

* Standard Form 88 (Report of Medical Examination), dated 12 October 1971
* Standard Form 88, dated 15 November 1971
* DD Form 214
* two Department of Veterans Affairs (VA) letters 

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.  He provides a Standard Form 88 showing he was examined on 12 October 1971 in conjunction with his enlistment.  Item 34 (G-U System) of this form is marked "normal" and is highlighted.  Item 77 (Examinee) of this form shows he was qualified for enlistment in the Army.

3.  On 13 October 1971, he enlisted in the Regular Army.  He did not complete basic training.

4.  He provides a Standard Form 88 showing he was examined on 15 November 1971 in conjunction with a medical board.  Item 34 is marked "abnormal" and is highlighted.  Item 74 (Summary of Defects and Diagnoses) contains the following remarks:  "Item #34:  4561.  Varicocele, left hemiscrotum, tender and painful.  LD, EPTS."  Item 77 of this form shows he was not qualified for induction or enlistment under the provisions of paragraph 2-14q of Army Regulation 40-501 (Standards of Medical Fitness) and paragraph 5-9 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  Item 78 (If Not Qualified, List Disqualifying Defects by Item Number) shows item 34 and item 74.

5.  His records contain a DA Form 2496 (Disposition Form), dated 15 November 1971, subject:  Request for Separation or Release from Active Duty Under the Provisions of Paragraph 5-9, Army Regulation 635-200.  This form shows he requested discharge under the provisions of Army Regulation 635-200, paragraph 5-9, and Army Regulation 40-501, paragraph 2-14q, for physical reasons which existed prior to his entry on active duty on 14 October 1971.  The form further shows he stated he had a painful left testicle which was not known to him but existed prior to his enlistment in the Army.  He indicated he did not desire to be present for the medical board hearing in his case.

6.  Special Orders Numbers 253 issued by Headquarters, U.S. Army Personnel Center, Fort Jackson, SC, dated 19 November 1971, discharged him effective 19 November 1971 for not meeting medical fitness standards at the time of enlistment.

7.  His DD Form 214 shows he was honorably discharged on 19 November 1971 under the provisions of chapter 5, section III, Army Regulation 635-200.  He was issued a separation program number of 375 and discharged because of not meeting medical fitness standards at the time of his enlistment.  This form shows he completed 1 month and 6 days of active service.

8.  He provides a VA letter, dated 16 February 1993, indicating he was rated as less than 10-percent service-connected disabled.

9.  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 Army Regulation 40-501, chapter 3.

	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.

10.  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.  The applicant's contention is noted.  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 the time of his enlistment.

2.  He provides his enlistment and separation medical examinations which were completed about 1 month apart.  The separation examination shows he was disqualified for enlistment due to varicocele, left hemiscrotum, tender and painful.  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 a painful left testicle which was not known to him 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 different reason for separation.  His records contain no indication of procedural or other errors that would have jeopardized his rights.

4.  The Board begins 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 shown on his DD Form 214 is correct and 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 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)                                         AR20130002443



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ABCMR Record of Proceedings (cont)                                         AR20130002443



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