BOARD DATE:	  9 September 2014

		DOCKET NUMBER:  AR20130022251 


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 (Certificate of Release or Discharge from Active Duty) to show he was medically discharged.

2.  The applicant states, in effect, he should have been honorably discharged by reason of physical disability.  He is still waiting for copies of his medical records.

3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* Department of Veterans Affairs (VA) Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative)

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 14 November 1994.

3.  His medical records are not available for review.

4.  On 31 January 1995, he underwent a physical examination for the stated purpose of "lost medical records."  His Standard Form 93 (Report of Medical History) shows he reported foot trouble and stated he had an operation on his left toe due to deformity in 1988 at 14 years of age and he took pain medication.  The examining physician noted the deformity of the middle toe of his left foot.  The examining physician also noted he was still having problems with his Achilles tendon and was being followed up at the orthopedic clinic.  The applicant was found fit for military service/separation.

5.  On 8 February 1995 after careful consideration of the applicant's medical records, laboratory findings, and medical examination, the Entrance Physical Standards Board (EPSBD) found he was medically unfit for enlistment in accordance with current medical fitness standards and the condition existed prior to service in the opinions of the evaluating physicians.  The applicant was seen and evaluated in the eighth week of basic combat training.  The EPSBD found the applicant suffered from a painful toenail border and could not wear military gear.  X-ray results showed exostosis phalanx (benign bone tumor beneath or adjacent to the nail) of his left foot.  He was diagnosed as having exostosis distal phalanx (third toe) of his left foot and the prognosis was that he would not be able to complete military training.  The EPSBD determined he did not meet medical fitness standards for enlistment under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), paragraph 2-11b(9) (currently paragraph 2-10b(2)), but did meet the retention standards of chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).  The EPSBD recommended his separation.

6.  He was discharged on 27 February 1995 for failure to meet procurement medical fitness standards under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-11.  He completed 3 months and 14 days of active service during this period; he did not complete initial entry training.  His service was uncharacterized.

7.  He provided a VA Form 21-22 appointing the Disabled American Veterans as his sole representative for his claim before the VA.

8.  Army Regulation 40-501, paragraph 2-10b (Miscellaneous Conditions of the Extremities), provides that current or history of deformities of the toes (acquired or congenital) including, but not limited to, conditions such as hallux valgus, hallux varus, hallux rigidicus, hammer toe(s), claw toe(s), and overriding toe(s), that prevents the proper wearing of military footwear or impairs walking, marching, running, or jumping, does not meet the standard for enlistment, appointment, and induction.

9.  Army Regulation 40-501, chapter 3, provides the various medical conditions and physical defects which may render a Soldier unfit for further military service.  Paragraph 3-13b states hallux valgus, when moderately severe with exostosis or rigidity and pronounced symptoms or severe with arthritic changes, is cause for referral to a medical evaluation board.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-11 states Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment or who became medically disqualified under these standards prior to entrance on active duty, active duty training, or initial entry training will be separated.  A medical proceeding, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within 6 months of the Soldier's initial entrance on active duty, that the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at that time, and that the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501, chapter 3.  The characterization of service for Soldiers separated under this provision will normally be honorable, but will be uncharacterized if the Soldier is in an entry-level status.

11.  Army Regulation 635-200 defines entry-level status as the first 180 days of continuous active duty or the first 180 days of continuous active service after a service break of more than 92 days.  Service for members separated in an entry-level status will be uncharacterized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted on 14 November 1994 and he was discharged on 27 February 1995 while he was in an entry-level status for failure to meet procurement medical fitness standards.

2.  He reported foot trouble in his medical history and stated he had an operation on his left toe due to a deformity in 1988 at 14 years of age.  He was diagnosed as having exostosis distal phalanx (third toe) of his left foot and the prognosis was that he would not be able to complete military training.  The EPSBD found he was medically unfit for enlistment in accordance with current medical fitness standards and the condition existed prior to service.

3.  However, competent medical authorities determined his condition was not so severe as not to meet medical retention standards.

4.  His DD Form 214 properly shows he was discharged for failure to meet procurement medical fitness standards under the provisions of Army Regulation 635-200, paragraph 5-11.

5.  In view of the foregoing evidence, there is an insufficient evidentiary basis to correct his DD Form 214 to show he was honorably discharged by reason of physical disability.

6.  An uncharacterized discharge is not meant to be a negative reflection of a Soldier's military service.  It merely means the Soldier has not served on active duty long enough for his or her character of service to be rated.

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)                                         AR20130022251



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ABCMR Record of Proceedings (cont)                                         AR20130022251



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