IN THE CASE OF:	

		BOARD DATE:	  24 March 2015

		DOCKET NUMBER:  AR20140013168 


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 a physical evaluation board (PEB) determine whether severance pay or a medical retirement is warranted.

2.  The applicant states:

* the findings of the medical evaluation board (MEB) were misleading and resulted in him signing a waiver 
* the condition of scoliosis was not noted by the physician during his medical screening prior to his enlistment 
* his condition was diagnosed in the military and occurred and/or was aggravated during his military service
* the waiver he signed must be voided in the interest of justice
* his medical condition has turned into depression

3.  The applicant provides:

* U.S. Military Entrance Processing Station Command (USMEPCOM)    Form 714-E (Request for Examination)
* DD Form 2246 (Applicant Medical Prescreening Form)
* excerpts of medical records
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a memorandum, subject:  Request for Separation and Waiver of PEB Evaluation, dated 19 August 2000


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.  He provides a DD Form 2246, dated 8 November 1999, which shows in item 9 (Physical Impairments) he checked "NO" for back trouble.

3.  The applicant enlisted in the Regular Army on 3 January 2000.  

4.  A DA Form 3947 (MEB Proceedings), dated 14 August 2000, shows he was diagnosed with symptomatic moderate-severe dextroscoliosis.  It was found to have existed prior to service (EPTS).  The MEB recommended that he be separated in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 5.  

5.  After being counseled on his options, he requested to be separated and waived a PEB.  In his request he acknowledged:

     a.  The MEB considered him unqualified for retention in the military service because of physical disability that was found to have been EPTS.  The MEB found the disability neither incident to nor aggravated by his military service.

     b.  He had been fully informed and understood that he was entitled to the same consideration and processing as any other Soldier if the Army separated him for physical disability.  He understood that it included consideration of his case by a PEB.  He elected not to exercise that right.  He understood the Department of Veterans Affairs (VA) would determine entitlement to VA benefits.

     c.  If his application was approved, he understood he would be separated by reason of EPTS physical disability.  He understood that he would receive a discharge in keeping with the character of his service as decided by the officer designated to effect his discharge.

6.  On 13 September 2000, the separation authority approved his request for separation and directed the issuance of an honorable discharge.    

7.  On 21 September 2000, the applicant was discharged accordingly.  He completed 8 months and 19 days of net active service.

8.  Army Regulation 635-40, chapter 5, provides for separation of an enlisted Soldier for non-service aggravated EPTS conditions when the Soldier requests waiver of a PEB.

9.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 5-11 specifically provides that 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 entry on active duty, active duty for training, or initial entry training will be separated.  The characterization of service for Soldiers separated under this provision will normally be honorable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for a PEB to determine whether severance pay or a medical retirement is warranted was considered and found to be without merit.

2.  He was found unfit for military service by a medical board after his entry on active duty with a condition determined to have been EPTS.  He concurred with that finding, requested discharge, and waived consideration by a PEB. 

3.  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 separation were appropriate considering all of the facts of the case.  Therefore, there is no basis for granting the requested relief.











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)                                         AR20140013168



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140013168



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1