IN THE CASE OF:	  

		BOARD DATE:	  8 January 2015

		DOCKET NUMBER:  AR20140006450 


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 that his discharge be voided and he be medically retired by reason of permanent disability with pay and benefits retroactive to 
21 January 1972.

2.  The applicant states, in effect, he was given a clean bill of health at the time of his induction; however, it is clear that the intensive training aggravated his condition to an unacceptable level and should have resulted in his being medically retired.  Instead, he was unjustly discharged for not meeting medical fitness standards after he reported to sick call and it was discovered that he had a heart condition with aortic regurgitation.  Accordingly, he is entitled to some form of monetary compensation.

3.  The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and induction and separation physicals.

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 was inducted on 1 December 1971 and was deemed qualified for induction.  He was transferred to Fort Knox, Kentucky to undergo his basic training.

3.  On 9 December 1971, the applicant was issued a permanent profile indicating that the applicant was not medically qualified for induction due to a heart murmur.  The issuing official directed that he be placed on administrative hold pending a medical board. 

4.  On the same date, the applicant’s physician initiated action to have the applicant evaluated by a medical board for a condition of heart murmur which the applicant had for at least 2 years and for which he did not meet medical fitness standards for induction or retention.  He also indicated that the condition existed prior to service (EPTS) and was not aggravated by military service.  

5.  On 30 December 1971, a medical board was convened at Ireland Army Hospital which determined that the applicant was not medically fit for induction due to aortic regurgitation.  The board recommended that he be discharged under the provisions of Army Regulation 635-200, paragraph 5-9 and Army Regulation 40-501, paragraph 2-18a, for failure to meet medical fitness standards at time of induction.  The applicant agreed with the findings and recommendations of the board on 5 January 1972.

6.  On 5 January 1972, the applicant submitted a request for separation from the service by reason of erroneous induction.  His request was approved on 
6 January 1972.

7.  Accordingly, he was honorably discharged on 21 January 1972 under the provisions of Army Regulation 635-200, paragraph 5-9, for failure to meet medical fitness standards at time of induction.  He had served 1 month and       21 days of active service.

8.  Army Regulation 635-200 sets forth the policy for the separation of enlisted personnel.  Paragraph 5-9 of the regulation in effect at the time 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.  The applicant was diagnosed with aortic regurgitation (heart murmur) during the first week of his arrival at Fort Knox, a condition that in all likelihood was an EPTS condition.

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 was inducted. 

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)                                         AR20140006450





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ABCMR Record of Proceedings (cont)                                         AR20140006450



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