IN THE CASE OF:	  

		BOARD DATE:	  3 December 2014

		DOCKET NUMBER:  AR20140006275 


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, that his records be corrected to show he was discharged or retired by reason of permanent disability. 

2.  The applicant states, in effect, that he was improperly diagnosed and unjustly discharged for a condition that existed prior to service (EPTS) when he should have been discharged or retired for permanent disability.  He was improperly diagnosed as having chrondromalacia and was never given any care other than crutches and an ace bandage.  This lack of care caused him to seek medical attention when he was discharged and resulted in him having a total patellectomy (knee cap replacement).  He did not have such a condition prior to entering the Army and he should have been processed for a medical discharge or retirement.

3.  The applicant provides copies of his medical board proceedings, his entrance physical, civilian treatment records, and military treatment records.

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 U.S. Army Reserve on 28 June 1978 for a period of 6 years.  He entered active duty for training on 7 August 1978 and was transferred to Fort Sill, OK to undergo one-station unit training as a cannoneer.

3.  The applicant went on sick call on 10 August 1978 with complaints of a swollen right knee.  X-rays were taken and he was given crutches and an ace wrap.  He had a follow-up appointment on 14 August 1978 and he was given a consult to be evaluated by orthopedics.

4.  He was evaluated by the orthopedic clinic on 18 August 1978 and the clinical notes indicate the applicant's symptoms existed in 1975, but he was not seen by a civilian physician.  The applicant was complaining of the pain during training and wanted out of the Army.  He was diagnosed as having chrondromalacia patella of the right knee.  It was recommended that he be considered by a medical board for separation.

5.  On 21 August 1978, a medical board convened at Reynolds Army Hospital at Fort Sill, OK and determined that his condition was an EPTS condition and recommended that he be discharged.  The applicant indicated that he did not desire to continue on active duty.  The findings and recommendation were approved on 24 August 1978.

6.  On 6 September 1978, the applicant was honorably discharged under the provisions of Army Regulation 635-40, chapter 5, and the Expeditious Discharge Program due to disability that EPTS.  He had completed 1 month of active service.

7.  Documents provided by the applicant show he underwent a right patellectomy in a civilian hospital on 7 November 1978.

8.  Army Regulation 635-200 sets forth the policy for the separation of enlisted personnel.  Paragraph 5-11 provides the criteria for the separation of personnel who did not meet procurement medical fitness standards when accepted for enlistment.  It states that medical proceedings must establish that a medical condition was identified by appropriate military medical authorities within 
6 months of initial active duty training that would have temporarily or permanently disqualified the member for entry into military service had it been detected at the time of enlistment. 
9.  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.  It 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.  Likewise, manifestation of lesions or 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) will be accepted as proof that the disease existed prior to entrance into active military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been processed for a medical discharge or retirement has been noted and appears to lack merit.  The applicant was diagnosed with chrondromalacia patella of the right knee during the first week of his arrival at Fort Sill, OK a condition that in all likelihood was an EPTS conditon.

2.  In the absence of evidence to show otherwise, it must be presumed that the applicant’s administrative discharge was correct and in conformance with applicable regulations with no indication of any violations of the applicant’s rights.

3.  It is also reasonable to presume that given the time between the date the applicant entered active duty and the date that his condition was discovered his condition was an EPTS condition and it was disqualifying.

4.  Accordingly, he was properly discharged after undergoing the required medical examinations and there is no basis to grant him a medical discharge or retirement for a condition he had when he enlisted. 

5.  Therefore, in the absence of evidence to show otherwise, there appears to be no basis to grant his 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 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)                                         AR20140006275



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ABCMR Record of Proceedings (cont)                                         AR20140006275



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