IN THE CASE OF:  	  

		BOARD DATE:  20 November 2014	  

		DOCKET NUMBER:  AR20140005793 


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) to show he was medically discharged in lieu of voidance of his induction.

2.  The applicant states:

* he informed the Army of his bad ankle prior to his induction
* his ankle injury was aggravated by military service
* he received treatment for the injury prior to his discharge
* he filed a claim with the Veterans Administration (VA) in 1973 that was denied
* upon filing a current claim for the injury, the VA informed him he is ineligible for service-connected benefits due to the "void induction" reason for his discharge

3.  The applicant provides:

* DD Form 214
* Pre-induction Report of Medical Examination
* Chronological Record of Medical Care/Discharge Summary from the U.S. Army Hospital, Fort Campbell, Kentucky
* DD Form 47 (Record of Induction)
* VA Rating Decision



COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests correction of the applicant's DD Form 214 to show he was medically discharged in lieu of voidance of his induction.

2.  Counsel states:

* the applicant disclosed his injury prior to his induction
* the applicant experienced tenderness of the old injury within 5 days of induction
* multiple injections were administered which provided relief
* surgical consultation while in service indicated a procedure could be performed but the results could not be guaranteed, thus the applicant declined the procedure
* the applicant was previously denied a VA claim for the injury and has currently been advised that he cannot file for service-connected benefits due to the "void induction" reason on his DD Form 214
* the nature of the injury is such that he should be granted a medical discharge in lieu of a voided induction to allow him to file a claim with the VA

3.  Counsel provides no further evidence.

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.  His military records show he was inducted into the Army of the United States on 2 July 1968.  He did not complete basic training.

3.  His records contain a pre-induction Report of Medical Examination, dated 18 April 1968, which noted the applicant had a painful scar at his ankle.  No additional defects were discovered and he was found fit for military service.

4.  Block 16 (Physical Defects) of the applicant's DD Form 47 shows "none (states he had surgery on left leg.)"

5.  The applicant provided a Chronological Record of Medical Care, dated 29 July 1968, reflecting his discharge from the U.S. Army Hospital, Fort Campbell, Kentucky, where he was diagnosed with and treated for traumatic neuritis, left tibia nerve.  Special instructions on the form note: "EPTS Med Bd [existed prior to service – medical board]."

6.  The applicant's complete discharge packet is not available for review.  However, the applicant signed a memorandum to his commanding officer, dated 12 August 1968, subject:  Request for Release, requesting to be released from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-9.1.  The memorandum states, "I feel I was erroneously inducted since I do not meet medical fitness standards of Chapter 2, AR [Army Regulation] 40-501 [Standards of Medical Fitness]."

7.  A Headquarters, U.S. Army Hospital, Specialized Treatment Center, Fort Campbell, Kentucky, memorandum, dated 21 August 1968, subject:  Transmittal of Report of Medical Examination, reflects a Report of Medical Examination and special orders releasing the applicant from the custody and control of the Army under the provisions of Army Regulation 635-200, paragraph 5-9.1, was transmitted to the Commanding General, U.S. Army Training Center, Fort Campbell, Kentucky.

8.  The applicant's DD Form 214 shows he was honorably released from military control on 28 August 1968 under the provisions of Army Regulation 635-200, chapter 5.  He was assigned separation program number (SPN) 376 specifying release from military control (void induction) because of not meeting medical fitness standards at the time of induction.  His DD Form 214 shows he completed 1 month and 27 days of active service.

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 separation of personnel who did not meet the medical fitness standards for procurement.  Specified commanders were authorized to order separation of individuals who were not medically qualified under procurement medical fitness standards when accepted for initial enlistment or induction.  Eligibility for separation 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.

	c.  Members who did not meet retention medical fitness standards would be processed under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

10.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System under the provisions of Title 10, U.S. Code, chapter 61, and Department of Defense Directive 1332.18.  It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.

11.  In accordance with Army Regulation 40-501, paragraph 2-31b(3), "The causes for rejection for appointment, enlistment, and induction are:  paralysis or weakness, deformity, discoordination, pain, sensory disturbance, intellectual deficit, disturbances of consciousness, or personality abnormalities regardless of cause which is of such a nature or degree as to preclude the satisfactory performance of military duty."

12.  Army Regulation 40-501, paragraph 3, sets forth the various medical conditions and physical defects which normally render a member unfit for further military service.  Paragraph 3-28m(2) states, "Neuritis.  When manifested by more than moderate, permanent functional impairment."

13.  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.  His records show he was separated under the provisions of Army Regulation 635-200, paragraph 5-9, due to not meeting medical fitness standards at the time of induction.

2.  Complete medical records related to his separation are not available for review.  However, a memorandum completed and signed in conjunction with his separation shows he voluntarily requested separation for physical reasons which existed prior to his induction and acknowledges he was erroneously inducted since he did not meet the Army's medical fitness standards at the time of his induction.

3.  Records reflect a separation packet, to include a Report of Medical Examination, was submitted to the separation approval authority and the applicant was subsequently honorably separated from the service.

4.  There is no evidence he incurred an injury or other medical conditions during his military service which would have warranted a medical discharge.  There is no evidence the tenderness he experienced from his old ankle injury resulted in permanent functional impairment which would have rendered him unfit for further military service under the provisions of Army Regulation 40-501, paragraph 3.  To the contrary, counsel states the applicant had a surgical consultation while in the service which indicated a procedure could be performed but the results could not be guaranteed, thus the applicant declined the procedure.

5.  The records show the applicant's injury existed prior to service and was cause for rejection for induction under the provisions of Army Regulation 40-501, paragraph 2.  His records contain no indication of procedural or other errors that would have jeopardized his rights.

6.  The ABCMR 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 separation shown on his DD Form 214 is correct and that he was properly separated.

7.  The ABCMR does not grant requests for changes in types of discharges solely for the purpose of making an applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her type of discharge.

8.  Granting veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for veterans' benefits should be addressed to the entity granting the benefits.

9.  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)                                         AR20140005793



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ABCMR Record of Proceedings (cont)                                         AR20140005793



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