BOARD DATE:	  24 March 2015

		DOCKET NUMBER:  AR20140013687 


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, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), block 11c (Reason and Authority) be changed to show he was discharged because of a medical disability.

2.  The applicant states, in effect:

* he was discharged because of a diagnosis of Friedreich's ataxia (a rare inherited disease that causes nervous system damage)
* at the time of his discharge, the Army did not consider this disease as military-related
* the Department of Veterans Affairs (VA) approved service-connection for this disease
* based upon the evidence of record, he feels he should have been medically discharged as a result of a service-connected disability
* he requests his records be reviewed and the Board make a decision granting him relief

3.  The applicant provides:

* DD Form 214
* email
* results of the applicant's appeal to the Board of Veteran's Appeals, VA, dated 16 March 2004

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR1999028755 on 25 July 2000.

2.  The applicant submitted an initial application, which was denied by the Board.

	a.  The applicant argues, in effect, that the decision made by the Board of Veterans' Appeals, dated 16 March 2004, wherein a service-connection was found for his medical condition, constitutes new evidence which warrants consideration by the Board.

	b.  In view of the circumstances of this case, and as an exception to the policy, this application for reconsideration warrants consideration by the Board.

3.  The applicant enlisted in the Regular Army on 10 March 1969.  After completing initial training, he was awarded military occupational specialty 94A (Food Service Helper).  He was assigned to a medical battalion in Germany; this was his only assignment while on active duty.

4.  At some point after his assignment to his unit in Germany, he was referred to a medical evaluation board (MEB) to determine whether he was fit for retention.  While the results of this MEB are not available, on 17 November 1969, the applicant requested expeditious discharge under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 9 (Expeditious Discharge for Disabilities Existing Prior to Service (EPTS)).  In his request he stated:

	a.  He had been informed that, based upon the findings and recommendations of the MEB, he was considered unfit for retention because of a physical disability which existed prior to his enlistment.  He confirmed his condition was neither incident to nor aggravated by military service.

	b.  He indicated he was fully informed and understood he was entitled to the same consideration and processing as any other member of the Army being separated for physical disability.

	c.  He said he understood this included having his case considered by the adjudicative system established by the Secretary of the Army for processing physical disability separations.  He elected not to exercise this right (emphasis added).
	d.  He also understood the entitlement to VA benefits would be determined by VA (emphasis added).

	e.  He said he recognized he would be separated by reason of physical disability (EPTS).

5.  On 5 January 1970, the separation authority approved the applicant's request.  On 21 January 1970, he was discharged accordingly.

6.  His DD Form 214 shows the reason and authority for discharge as Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The character of service is honorable, and he had 10 months and 12 days of net active creditable service.

7.  On 28 June 1999, the applicant applied to the Board requesting his discharge be changed to a medical and disability retirement.  The Board denied his request.

8.  Army Regulation 635-40, in effect at the time, prescribes policies and procedures for the physical disability evaluation of members of the Army for retention, retirement, or separation.  It is based on the authority outlined in Chapter 61, Title 10, U.S. Code.

	a.  It states, 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.

	b.  Paragraph 4-25 (Determination of physical unfitness), subparagraph c (VA rated disabilities), states the VA Schedule for Rating Disabilities does not relate to findings of unfitness for military duty.  

	c.  Subparagraph d (EPTS Conditions) addresses service members who are found unfit by reason of physical disability neither incurred nor aggravated during any period of service.  Enlisted personnel who are eligible for expeditious 
discharge under chapter 9, upon their application, may be processed under that chapter.  All other members will be recommended for discharge without entitlement to disability benefits.

	d.  Chapter 9 applies to enlisted service members with less than 3 years of active service and who are found unfit for retention on active duty by reason of a physical disability neither incurred nor aggravated during any period of service.  This chapter does not apply to those who demand a full and fair hearing.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the finding of a service-connection by the VA Board of Veterans' Appeals should be applied to his case currently under review by the Board.  The VA, however, operates under a different Title of the U.S. Code than the Department of Defense (Titles 38 and 10, respectively), and each department must apply its own rules for determining compensation and benefits.  The decisions made by one is not binding on the other.

2.  By regulation, there is a presumption that a Soldier was in sound physical and mental condition upon entering active service (presumption of soundness) except when there is evidence of an EPTS condition that is discovered shortly after entry on active duty.  When an EPTS condition is identified, the service member becomes procedurally subject to separation based on that EPTS condition.

3.  The evidence of record shows the applicant suffered from a medical condition that rendered him unable to satisfactorily perform the duties of his grade and military specialty.  Consequently, his records were evaluated by an MEB.  According to accepted medical principles, the manifestation of a chronic disease from the 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) is accepted as proof that the disease existed prior to entrance into active military service.  

4.  While the MEB proceedings are not available for review, the applicant's request for expeditious discharge clearly acknowledges the MEB's results, which showed he suffered from a medical condition that was found to have been EPTS, and was neither incurred nor aggravated during any period of service.  The MEB further determined he was unfit for retention.  

5.  He voluntarily requested expeditious discharge by reason of physical disability due to an EPTS medical condition.  In his request he affirmed he could have his case reviewed and evaluated within the adjudicative system established by the Secretary of the Army for handling physical disability separations.  He elected not to exercise this right.  Due to this EPTS condition and, because the applicant made a voluntary request under chapter 9 of Army Regulation 635-40, in effect at the time, the separation authority approved his discharge.  

6.  Based upon the foregoing, there is insufficient evidence upon which to grant 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 to amend the decision of the ABCMR set forth in
Docket Number AR1999028755 on 25 July 2000.



      _______ _  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)                                         AR20140013687





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ABCMR Record of Proceedings (cont)                                         AR20140013687



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