BOARD DATE:	  19 December 2013

		DOCKET NUMBER:  AR20130007852 


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) by deleting from item 32 (Remarks) the statement "Physical disability - existed prior to service (EPTS) - established by medical board and individual made application for discharge by reason of physical disability (not entitled to receive disability severance pay)."

2.  The applicant states, in effect, the above statement should not have been typed on his DD Form 214.  He was at the hospital almost every week for problems with his feet.  It was not until 1979 that he knew as a veteran he should be covered for medical care.  He is asking for the statement to be deleted from his DD Form 214 so that he may be eligible for compensation from the Department of Veterans Affairs (VA); he filed his first claim in 1979.

3.  The applicant provides his DD Form 214, two letters, and three 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.  On 14 January 1964, the applicant enlisted in the Regular Army and he held military occupational specialty 36C (Wire Systems Installer).  On 12 July 1964, he was assigned to the 26th Signal Battalion, 505th Signal Group, Germany.

3.  His medical records are not available for review with this case.  However, his record contains a DA Form 1049 (Personnel Action), dated 6 March 1965, wherein he requested a discharge from the Army due to a physical disability.  In the request, he stated:

	a.  He had been notified that, based on preliminary findings, he was considered unfit for retention because of a physical disability which was considered to have existed prior to 14 January 1964 [or EPTS].

	b.  It had been fully explained to him, as a matter of right, he was entitled to the same processing as any other member of the Army who was separated for physical disability which included consideration of his case by a physical evaluation board (PEB).  He further stated that he did not elect to exercise that right.  

	c.  It had been fully explained to him that as a result of his application, and provided the approved findings of a medical board corroborated the preliminary findings concerning his unfitness, he may be discharged for physical disability without further hearing.  He stated he understood that such separation would be without disability retirement or disability severance pay.  However, it did not preclude him from applying for benefits administered by the VA.

	d.  Further, he acknowledged that he understood if the application was approved, he would be honorably separated unless other circumstances required a different type of separation.  He authenticated this form by placing his signature and signature block on the form on 6 March 1965.

4.  His record contains an Enlisted Personnel Data form, dated 23 March 1965, wherein it shows the applicant received a permanent 4 profile for his lower extremities for pes planus (flat feet).  The date he received the profile is not shown on the form.


5.  His request for discharge from the Army due to physical disability - EPTS was approved on 25 May 1965 under the provisions of Army Regulation 635-40A (Personnel Separations - Physical Evaluation for Retention, Retirement, or Separation), paragraph 33, by reason of a physical disability - EPTS.

6.  He was honorably discharged from active duty on 6 July 1965.  He completed 1 year, 5 months, and 23 days of creditable active service.

7.  Item 11c (Reason and Authority) of the DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-40A, paragraph 33, Separation Program Number (SPN) 277.  It also contains the entry "See Number 32."

8.  Item 32 of his DD Form 214 contains the entry "Physical disability - EPTS - established by medical board and individual made application for discharge by reason of physical disability (not entitled to receive disability severance pay)."

9.  His record contains a letter, dated 19 July 1965, to the applicant from the Army Surgeon General Lieutenant General (LTG) LDH, wherein LTG LDH stated he was acknowledging the applicant's letter to the President of the United States regarding the condition of his feet and his desire to be discharged from the service.  He (LTG LDH) had been advised that, following the recommendation of a medical board and subsequent administrative review, he (the applicant) had been discharged from the service on 6 July 1965.

10.  The applicant provides three letters of support, two undated and one dated 23 March 2009, wherein his brother, a friend, and his former coach all stated the applicant played basketball in junior and senior high school, he was in good health while growing up, he was a track star in high school, and he was also on the softball team. 

11.  Army Regulation 635-40A, paragraph 33, in effect at the time, stated that members of the Army ordered into active military service for a period in excess of 30 days, and who are determined to be unfit by a medical board for retention on active duty by reason of physical or mental disqualifications which are not incurred or aggravated while entitled to receive basic pay, may request either discharge or relief from active duty or elect an appearance before a PEB.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in pertinent part, states that according to accepted medical principles certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service.  Examples are congenital malformations and hereditary conditions or similar conditions in which medical authorities are in such consistent and universal agreement as to their cause and time of origin that no additional confirmation is needed to support the conclusion that they existed prior to military service.

13.  Army Regulation 635-5-1 (SPN Codes) provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN codes to be entered on the DD Form 214.  It stated the SPN code of 277 was the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-40A, paragraph 33, by reason of physical disability, EPTS.

14.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  The version in effect at the time stated the SPN was an integral part of the authority for the separation of a service member.  The reason and authority for the separation was entered in item 11c of the DD Form 214.  It also showed "Physical disability - EPTS - established by medical board and individual make application for discharge by reason of physical disability (not entitled to receive disability severance pay)" was the corresponding entry for the narrative reason for a separation under SPN 277.  It further stated the remarks section of the DD Form 214 was to be used to complete entries too long for their respective blocks. 

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant may have been physically healthy prior to his entry on active duty, the evidence of record confirms he was found to have a physical disability (flat feet) that existed prior to his entry on active duty.  He acknowledged that he was counseled that he was considered unfit for retention and he subsequently requested discharged by reason of physical disability - EPTS.  On 6 July 1965, he was honorably discharged under the provisions of Army Regulation 635-40A, paragraph 33, by reason of a physical disability, EPTS.

2.  Based on his discharge under this provision, and in accordance with governing regulations, his DD Form 214 was properly prepared showing the authority for his discharge as SPN 277 and the corresponding complete reason for his separation as "Physical disability - EPTS - established by medical board and individual made application for discharge by reason of physical disability (not entitled to receive disability severance pay)."  As this entry was too long to enter in item 11c, it was correctly entered in item 32 of his DD Form 214.


3.  The ABCMR does not grant requests for the correction of records solely for the purpose of making the applicant eligible for VA or other benefits.  Every case is individually decided based upon its merits when an applicant requests a correction to his military records.

4.  In view of the foregoing, there is no 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)                                         AR20130007852



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ABCMR Record of Proceedings (cont)                                         AR20130007852



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