IN THE CASE OF:  	  

		BOARD DATE:  19 May 2015	  

		DOCKET NUMBER:  AR20140016220 


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 (Certificate of Release or Discharge from Active Duty), in block 25 (Separation Authority) and block 28 (Narrative Reason for Separation), be changed to show he was discharged because of a medical disability.

2.  The applicant states, in effect:

* he was separated from the Army and the South Carolina Army National Guard (SCARNG) in 1986
* he has since been evaluated by the Department of Veterans Affairs (VA) and, in 2009, was given a service-connected disability rating of 10 percent for the same medical conditions that led to his separation
* the entry which states he did not meet procurement and fitness standards is wrong

3.  The applicant provides:

* DD Form 214
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* letter from VA notifying the applicant of the rating and the associated financial benefit
* two photocopy pages showing a DA Form 3982 (Medical and Dental Appointment) and DD Forms 689 (Individual Sick Slip)
* two DA Forms 3349 (Physical Profile Board Proceeding)
* a document titled Prospective Diagnosis, dated 4 May 1987
* VA Form 21-0960C-1 (Parkinson's Disease Disability Benefits Questionnaire (DBQ)), signed 18 November 2011, with titles lined out and diagnosis shown as Plantar Fasciitis (inflammation of the plantar fascia ligament located on/near the heel) and Pes Planus (flat feet) 
* VA Form 21-0960M-5 (Flatfoot (Pes Planus) DBQ), signed 23 January 2014
* form, dated 14 February 2014, from VA prescribing a permanent SC Department of Motor Vehicles Placard for Osteoarthritis and Degenerative Disc Disease
* Request for Quotation from VA to a prosthetic company
* letter from Case Management Division, Army Review Boards Agency

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.  Applicant's complete records are not available for review, however he provides a DD Form 214 and an NGB Form 22.  These two documents are sufficient for the Board to make a determination in his case.

3.  The applicant enlisted in the SCARNG on 25 September 1985.  On 4 June 1986, he entered active duty to complete initial training.  His DD Form 214 shows he was honorably released from active duty on 28 July 1986 after 1 month and 25 days of net active creditable service.  

	a.  Item 11 (Primary Specialty Number, Title, and Years and months in Specialty) is blank.  

	b.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) is blank.

	c.  Item 23 contains the entry, release from active duty.  Item 25 lists the separation authority as paragraph 5-11 (Separation of Personnel who did not meet Procurement Medical Fitness Standards), Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  The narrative reason for separation is did not meet procurement medical fitness standards - no disability.

4.  His NGB Form 22 shows the effective date for his separation as 28 July 1986.

	a.  Item 10 (Record of Service) states, in sub-paragraph a, the applicant served 10 months and 4 days with the SCARNG.  

	b.  Primary Specialty Number, Title, and Date Awarded (Item 13) is blank, as is item 15 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded during this Period).

	c.  Item 18 (Remarks) shows the applicant was on active duty for training from 4 June 1986 to 28 July 1986.

5.  Applicant provides:

	a.  A letter from VA which states he is receiving disability compensation and has a disability rating of 10 percent effective 1 December 2011 (emphasis added).

	b.  Two DA Forms 3349 which show the applicant having a temporary (T) profile for the following physical defects:

* plantar fasciitis
* capulitis [sic, capsulitis], bilateral (inflammation of a ligament in the foot)
* metatarsalgia, bilateral (general term used to denote a painful foot condition in and around the ball of the foot)

	c.  A document titled Prospective Diagnosis, dated 4 May 1987, apparently from the VA Medical Center in Columbia, SC and signed by a doctor identified as an orthopedic examiner.  The document shows a prospective diagnosis of bilateral congenital (condition existing at birth) pigeon toes deformity.

	d.  VA Form 21-960M-5, signed 23 January 2014 by a physician, which provides a history of the applicant's medical condition.

* 1997, service-connected disability rated 10 percent
* Veteran's legs, hips, and back conditions are directly related and caused by his plantar fasciitis going untreated by the VA
* Veteran is only able to walk for short distances due to pes planus and plantar fasciitis

6.  Army Regulation 635-200, chapter 5 (Separation for Convenience of the Government), paragraph 5-11, in effect at the time, prescribes procedures for separating Soldier who were not medically qualified under procurement medical fitness standards. 

	a.  Medical proceedings must establish a medical condition was identified by appropriate military medical authority within 4 months of the Soldier's initial entrance on active duty or active duty for training.  

* this medical condition is one that would have permanently disqualified the Soldier from entry into military service had it been detected at the time
* does not meet medical retention standards, as outlined in Army Regulation 40-501 (Standards of Medical Fitness)

7.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, separation, and retirement.

	a.  Chapter 3 provides guidance for the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for service.

	b.  These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier's performance of his/her duties; may compromise or aggravate the Soldier's health or well-being if the Soldier were to remain in the military service (this may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring); may compromise the health or well-being of other Soldiers; or may prejudice the best interests of the government if the individual Soldier were to remain in the military service.

	c.  Chapter 7 provides guidance for the physical profile serial system.  The profile is based on the function of body systems and their relation to military duties.  There are six factors, designated as:

* "P" for physical capacity or stamina
* "U" for upper extremities
* "L" for lower extremities
* "H" for hearing
* "E" for eyes
* "S" for psychiatric

	d.  Each factor is assigned a numerical designation from 1 to 4.

* "1" represents a high level of medical fitness
* "2" means there are some activity limitations
* "3" equates to significant limitation
* "4" indicates defects of such severity military duty performance is -drastically limited

	e.  The DA Form 3349 is used to record both permanent and temporary profiles.  

8.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military 
Records (ABCMR).  

	a.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  

	b.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  

	c.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214, which shows he was separated for not meeting procurement medical fitness standards, should instead reflect he was separated due to a service-connected disability.  Although his complete records are not available for review, the evidence provided does not support his contentions.

2.  Paragraph 5-11 of Army Regulation 635-200 provided for the separation of Soldiers with a medical condition, identified within 4 months of entrance on active duty for training (emphasis added), that would have been disqualifying had it been identified on entrance and that failed medical retention standards.  The applicant's case clearly fits these criteria.  The preponderance of the evidence shows the applicant's disqualifying medical conditions were identified shortly after entering active duty for training and he was separated after only 1 month and 25 days thereafter.  

3.  Despite the absence of the documents associated with his separation, there is no evidence the applicant was not properly and equitably discharged in accordance with the regulations in effect at the time and that all requirements of law and regulations were not met or that the rights of the applicant were not fully protected throughout the separation process.  Absent evidence to the contrary, regularity must be presumed.

4.  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 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)                                         AR20140016220



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ABCMR Record of Proceedings (cont)                                         AR20140016220



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