IN THE CASE OF: 

		BOARD DATE:	    28 January 2014

		DOCKET NUMBER:  AR20130009185 


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 (Report of Separation from Active Duty) to show he was discharged due to a medical condition received on active duty vice honorably discharged.

2.  The applicant states he was discharged from the Army due to a knee injury he sustained while in basic combat training (BCT).  He should have been medically discharged at that time.  He is being denied Department of Veterans Affairs (VA) disability benefits on the basis that he had a previous injury.  However, his injury (Hauser procedure) was healed [at the time he entered active duty] and it was reinjured while in BCT due to the orders he was given by the sergeant on duty.

3.  The applicant provides his DD Form 214, Standard Form (SF) 93 (Report of Medical History), SF 88 (Report of Medical Examination), and seven letters dated between 23 June 1977 and 21 April 2009.

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 provides a letter, dated 23 June 1977, from an orthopedic surgeon, wherein it stated the applicant had been under the care of his office for difficulties in his left patella (kneecap) and was treated in 1967 and 1968.  He first had a Hauser procedure and then a left patellectomy.  He had been asymptomatic since, there were no restrictions on his activities, and no disabilities were noted.

3.  On 25 June 1977, he completed an SF 93 wherein he stated he was in good health and had had a Hauser procedure in 1967 and a patellectomy after that date.  His records contain an SF 88, dated 25 June 1977, wherein it shows he underwent a physical examination on that date.  He was found qualified for induction and/or enlistment.

4.  He enlisted in the Regular Army (RA) on 30 June 1977.  He was assigned for BCT to Fort Jackson, SC.

5.  His records contain an SF 502 (Narrative Summary), undated, wherein a medical physician with the Moncrief Army Hospital, Fort Jackson, SC, stated the applicant was treated at the hospital for a routine work-up.  The examining physician indicated the applicant stated he had left knee pain upon training, diagnosed him with status post-patellectomy, left knee and left knee pain upon training that existed prior to service (EPTS), and stated he was not qualified for enlistment in the military at the time of his entrance.

6.  On 3 July 1977, the applicant's records went before a Medical Evaluation Board (MEB).  The board found his diagnosis of status post-patellectomy, left knee and pain with training made him medically unfit and determined his condition was EPTS and was not service aggravated.  The board recommended he be separated under the provisions of Army Regulation 635-200 (Enlisted Separations), paragraph 5-9 for failure to meet medical enlistment standards.  His MEB shows his unit as the U.S. Army Reception Station, Fort Jackson, SC.

7.  On 3 July 1977, the applicant acknowledged he had been advised of the findings and recommendation of the MEB and that he agreed with the MEB's recommendations.  He lined through the statement that would have indicated he desired to appeal the board's findings.


8.  His records contain a Statement of Change of Medical Status, dated 7 July 1977, wherein it stated, "I underwent a medical examination in the past 180 days.  A copy of the SF 88 and SF 93…to medically clear me for enlistment is appended and I have reviewed both forms.  The medical change in my condition since that time is status post-patellectomy, left knee, and pain and I understand that this is an EPTS condition.  I further realize that this statement…the MEB and the SF 502 reflects my final medical examination upon my departure from the Army…"  He authenticated this form by placing his signature in the appropriate block on that date

9.  The separation authority subsequently approved his request for a discharge.

10.  He was honorably discharged on 14 July 1977.  He completed 15 days of creditable active service.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 5-9, separation program designator (SPD) JTF, for failure to meet established physical standards.  Item 11 (Last Duty Assignment and Major Command) of this form shows his last assignment as the Reception Station, Fort Jackson, SC.

11.  Army Regulation 635-200, paragraph 5-9, of the version in effect at the time, stated individuals who were not medically qualified under procurement medical fitness standards when accepted for induction or initial enlistment would be discharged when a medical board established that a medical condition was identified by appropriate military medical authority within 4 months of the member's initial entrance on active duty or active duty for training and which would have permanently disqualified him for entry into the military service had it been detected at that time.  Separation would be accomplished within 72 hours following approval by the discharge authority.  Authority for the discharge, Army Regulation 635-200, paragraph 5-9, and SPD JTF would be included in directives or orders directing the discharge.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army Physical Disability Evaluation system, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

13.  Army Regulation 635-40 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 include symptoms of chronic disease from date of entry on active military service (or so close to that date of entry that the disease could not have started in so short a period) which will be accepted as proof that the disease existed prior to entrance into active military service (emphasis added).

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms that on 3 July 1977, just 4 days after the applicant enlisted in the RA and while still assigned to the Fort Jackson Reception Station, an MEB found he was medically unfit for enlistment in accordance with current medical fitness standards and determined his condition of status post-patellectomy, left knee and left knee pain existed prior to his entry into military service.

2.  He was counseled on the recommendation of the MEB and he subsequently requested immediate discharge from the Army.  On 14 July 1977, he was discharged after serving on active duty for only 15 days.  

3.  His record shows he had a history of difficulties with his left knee since 1967, had two surgeries on his left knee prior to his enlistment, and had apparently complained about having pain in his left knee while still assigned to the Fort Jackson Reception Station.  The evidence of record does not show that he ever started BCT or was ever assigned to a BCT unit at Fort Jackson, SC.

4.  The DD Form 214 he was issued properly shows he was honorably discharged under provisions of Army Regulation 635-200, paragraph 5-9 for a medical condition that existed prior to his entry into military service. 

5.  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)                                         AR20130009185





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ABCMR Record of Proceedings (cont)                                         AR20130009185



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