IN THE CASE OF:	   

		BOARD DATE:	  17 June 2014

		DOCKET NUMBER:  AR20130018740 


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, in effect, correction of his DD Form 214 (Report of Separation from Active Duty) to show he was discharged due to a medical condition incurred on active duty with entitlement to compensation.

2.  The applicant states:

	a.  He fell and injured his right wrist while training on the confidence course.  The drill instructor advised him that he would be all right and to "carry on."  When he proceeded to the parallel bars, his wrist was severely swollen and he could not grip the bars.  He was subsequently ordered to sick call.

	b.  The attending physician informed him that his wrist was broken.  He was placed in a room and an officer advised him that he could make up a story and get out of the Army in 2 to 3 weeks or he could remain in the holdover barracks for up to a year while his wrist was being repaired.  After the officer left, a noncommissioned officer ordered him to write a statement saying his injury was a pre-existing condition.  He was told exactly what to write and he was told he would receive an honorable discharge.

	c.  Upon completion of the statement, he was sent to the holdover barracks where he awaited separation.  At no time was he offered legal counsel or advised of his rights.  He subsequently spoke with his brother, a decorated Vietnam combat veteran, who advised him to contact the Department of Veterans Affairs (VA).  However, he did not have all of his records and upon treatment by the VA, he was denied compensation due to his discharge.

3.  The applicant provides a copy of his DD Form 214 and Standard Form 600 (Chronological Record of Medical Care).

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 Regular Army on 26 February 1976.

3.  His records contain a Standard Form 502 (Narrative Summary), dated 15 March 1976, wherein a medical physician stated the applicant fell on his wrist in August 1975.  Since then, the applicant had experienced pain and weakness.  He received an x-ray and was diagnosed with a nonunion navicular fracture of the right wrist.

4.  On 16 March 1976, the applicant was advised that his medical examination on 15 March 1976 revealed that he had a medical condition which would have permanently disqualified him from entry into military service had it been detected at the time.  He was given the option of completing the period of service for which he enlisted or applying for separation from the service due to having been erroneously enlisted.

5.  The applicant certified that he had been counseled as to his rights and that he fully understood his right to submit an application for separation from the service due to erroneous enlistment.  He elected to make an application for separation.

6.  On 29 March 1976, the applicant's records went before a medical evaluation board (MEB).  The board found his diagnosis of a nonunion navicular fracture of the right wrist made him medically unfit for enlistment and determined the problem existed prior to service (EPTS) and was not service aggravated.  The board recommended his separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-9, for failure to meet medical enlistment standards.

7.  On 8 April 1975, the applicant acknowledged that he had been advised of the findings and recommendation of the MEB and he agreed with the MEB's actions.  He lined through the statement that would have indicated he desired to appeal the board's findings.
 
8.  On 12 April 1976, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 5-9, separation program designator (SPD) JFT for failure to meet established physical standards.

9.  He was honorably discharged on 16 April 1976.  He completed 1 month and 29 days of creditable active service.

10.  Item 27 (Remarks) of his DD Form 214 contains the entry "SPD JFT PARA 5-9 AR 635-200" indicating he was discharged under the provisions of Army Regulation 635-200, paragraph 5-9, for failure to meet established physical standards (no disability).

11.  The applicant provided a copy of a Standard Form 600, dated 12 March 1976, that shows he stated he injured his right hand when he fell from a barn in August 1975; however, he did not get treatment at the time.

12.  Army Regulation 635-200, paragraph 5-9 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.

13.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states that SPD code JTF is the appropriate code to assign to Soldiers released from active duty due to failing to meet procurement medical fitness standards under the provisions of Army Regulation 635-200, paragraph 5-9.

14.  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.

15.  Army Regulation 635-40 further 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 the 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.

16.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA has neither the authority nor the responsibility for determining physical fitness for military service.  It awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant enlisted on 26 February 1976 and shortly thereafter he was diagnosed with a nonunion navicular fracture of the right wrist.  An MEB subsequently found the applicant medically unfit for enlistment in accordance with medical fitness standards and determined his condition existed prior to his entry into military service.  The applicant concurred and requested discharge.  Accordingly, he was discharged without disability benefits from the Army.

2.  As a matter of policy, the Army accepts members with EPTS conditions on the chance that they can successfully complete training and serve.  When disqualifying symptoms occur during training or shortly after entry on active duty, these individuals are procedurally subjected to separation based on the EPTS condition.

3.  The VA operates under its own policies and may compensate a veteran for any medical condition which is determined to be service related.  Whether a condition was medically disqualifying for retention is not relevant in the VA's determination.

4.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would have jeopardized his rights.  The type of discharge directed and the reasons for discharge were appropriate considering all of the facts of the case.

5.  In view of the foregoing, his request should be denied.

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)                                         AR20130018740



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ABCMR Record of Proceedings (cont)                                         AR20130018740



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