IN THE CASE OF:	  

		BOARD DATE:	  16 April 2015

		DOCKET NUMBER:  AR20140016085 


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 her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she was discharged due to a physical disability.

2.  The applicant states, in effect, she was discharged 4 months prior to her expiration term of service (ETS) date due to a physical disability.  However, her DD Form 214 shows she was discharged on her ETS date.  She did not realize there was an error until she applied for Department of Veterans Affairs (VA) benefits.

3.  The applicant provides copies of:

* DD Form 214 (Report of Separation from Active Duty), ending on               15 November 1977
* Report of Medical Examination, dated 1 May 1980
* Narrative Summary (First page only)
* DD Form 214, ending on 17 July 1980

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.  On 12 February 1973, the applicant enlisted in the Regular Army and she completed training as a clerk typist.

3.  On 16 October 1974, the applicant was advanced to specialist four, pay grade E-4.  On 29 October 1975, she was subsequently promoted to specialist five, pay grade E-5.  In 1976 she was laterally appointed to sergeant, pay grade E-5.

4.  On or about 12 May 1980, a medical evaluation board (MEB) determined that the applicant was medically unfit due to the following conditions:

	a.  Hyperlipidaemia, Group D (Type I.  Treated, not improved.

	b.  Eruptive xanthoma, secondary to first diagnosis.

	c.  Sclerocystic ovaries (wedge resected October 1975).

	d.  Infertility, female, probably secondary to diagnosis.

5.  The MEB referred the applicant to a physical evaluation board (PEB).

6.  On 1 June 1980, a PEB convened to consider the applicant's medical conditions.  The PEB determined that the applicant's condition (hyperlipidaemia) precluded her from reasonable fulfillment of her Army service.  The PEB further determined that there was sufficient evidence to substantiate that the condition for which she was unfit was congenital and existed prior to service and was not aggravated by service; but, rather was the result of natural progression.  The applicant concurred with the PEB findings and waived a formal hearing.

7.  The PEB also determined that sclerocystic ovaries and infertility were not ratable. 

8.  On 7 July 1980, the Commander, Military Personnel Center, Alexandria, Virginia, directed the immediate discharge of the applicant under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24E(4).  Severance pay was not authorized.

9.  Orders 196-106, U.S. Army Regional Personnel Center Schweinfurt, dated 
14 July 1980, announced the applicant's discharge due to her medical condition, effective 17 July 1980.

10.  The applicant's DD Form 214 ending on 17 July 1980 shows she was honorably discharged under the authority of Army Regulation 635-200.  The reason for separation was relief from active duty.  She was assigned a separation program designator (SPD) code of JBK and a reentry code of 1.

11.  Army Regulation 635-40 provides guidance and policies for physical evaluation for retention, retirement and separation.  At the time of the applicant's discharge, paragraph 4-24E(4) of this regulation provided for separation due to a physical disability that existed prior to service as determined by a PEB.

12.   Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The SPD code of JFM was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of Army Regulation 635-40, Paragraph 4-24E (4), for a physical disability that existed prior to service.  Additionally the SPD/RE Code Cross Reference Table establishes RE code of 3 as the proper RE code to assign to Soldiers for this reason.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her DD Form 214 should be corrected to show she was discharged due to a physical disability.

2.  The available evidence clearly shows the applicant underwent medical examination by both an MEB and PEB resulting in a determination that she was medically unfit due to a congenital condition that existed prior to service and the condition had progressed naturally.  She was accordingly discharged approximately 4 months prior to her normal ETS date.

3.  The applicant's DD form 214 was incorrectly prepared by showing that she was honorably discharged due to "relief from active duty" with an RE code of 1.

4.  In view of the above, it would be appropriate to correct her DD Form 214 by showing she was discharged:

* under the authority of Army Regulation 635-40, paragraph 4-24E(4)
* with a separation code of JFM
* due to physical disability, existed prior to service, PEB
* with an RE-3

BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending her DD Form 214 to show:

* Separation authority:  Army Regulation 635-40, paragraph 4-24E(4)
* Separation code:  JFM
* Reenlistment code:  RE-3
* Narrative Reason for Separation:  Physical disability, existed prior to service, PEB



      __________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)                                         AR20140016085



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ABCMR Record of Proceedings (cont)                                         AR20140016085



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