IN THE CASE OF:	  

		BOARD DATE:	  14 May 2015

		DOCKET NUMBER:  AR20140016808 


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, that his discharge under the provisions of Army Regulation (AR) 635-200 (Enlisted Personnel), chapter 5 be changed to a medical discharge.

2.  The applicant states he was injured in his first week of basic training.  He was discharged because he could not complete basic training.  He never thought it would be a problem.

3.  The applicant provides a letter from the Department of Veterans Affairs (VA). 

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's records show he underwent an enlistment physical at the Albuquerque Military Entrance Processing Station on 18 March 1975 and was qualified for enlistment.  The medical examiner noted he had pes planus (flat feet).

3.  He enlisted in the Regular Army on 20 June 1975 and he was subsequently assigned to Fort Ord, CA, for training.

4.  A narrative summary shows he underwent a physical examination and he was noted to be within the normal limits except for severe sub patellar (knee) pain.  The military physician diagnosed him with chrondromalacia patella and noted it existed prior to service (EPTS).  The military physician opined that he did not meet the procurement standards of chapter 2 of AR 40-501 (Standards of Medical Fitness) and recommended he meet a medical evaluation board (MEB) for consideration of separation from the service under the provisions of 
AR 635-200, chapter 9.
  
5.  On 3 July 1975, a MEB convened at Silas B. Hays Army Hospital, Fort Ord, CA.  After consideration of the clinical records, laboratory findings, and medical examination, the MEB found he was medically unfit due to chrondromalacia patella, left.  The condition was determined to be EPTS, not in the line of duty, and not aggravated by active duty.  The MEB recommended his separation under the provisions of chapter 5 (medically unfit for induction) of AR 635-200.  

6.  On 3 July 1975, he requested separation from the Army under the provisions of AR 635-200, paragraph 5-9.  He indicated that:

* he was informed that based on the preliminary findings of the MEB he did not meet the medical standards for procurement when he enlisted on        20 June 1975
* he understood that he could accept separation from the service for the convenience of the government or he could elect to remain on active duty and complete the full term of active duty he enlisted for
* he understood his condition was EPTS and was neither incident to nor aggravated by military service
* he understood if the approved MEB findings agreed with the preliminary findings and he elected to be separated, it would be without entitlement to disability from the Department of the Army.
* he understood  his separation would not preclude him from applying for benefits from the VA
* if his separation were approved, he would be honorably separated unless circumstances connected with his period of service required a different type of separation
* he elected to be separated 

7.  On 11 July 1975, the findings of the MEB were approved.  On 14 July 1975, after being informed of the approved findings and recommendations of the Board, he agreed with the Board’s findings and declined to appeal.

8.  On 30 July 1975, he was accordingly discharged.  He completed 1 month and 11 days of active service.  Item 9c (Authority and Reason) of his DD Form 214 shows the entry "Section III, Chapter 5, AR 635-200, SPD JFT."

9.  He provides a letter from the VA which shows he was awarded a 30 percent service-connected disability compensation for chrondromalacia, left knee.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It provides for MEB's which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.

11.  Chapter 9 of Army Regulation 635-40, in effect at the time of the applicant's discharge, provided the procedures for the expeditious discharge for disabilities that were EPTS.  It provided that when an enlisted member on active duty was believed to be incapable of performing his or her duties with reasonable effectiveness because of a disability, which was believed not to have been aggravated during any period of active service, the commander concerned would initiate action to request a physical examination.  The medical examination would be forwarded to a medical board for use in consideration of the case and a medical board evaluation would be accomplished.  It further stated that when the medical board recommended a member's separation because of medical unfitness which existed prior to entry into military service or which was incurred when the member was not entitled to basic pay and which had not been aggravated by such service, the medical treatment facility commander would cause the member to be offered the opportunity for expeditious separation, if he or she was otherwise eligible.

12.  AR 635-40 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.

13.  AR 635-200 provides the Army’s enlisted separation policy.  Chapter 5 provides that Soldiers who are 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.  Paragraph 5-9, in effect at the time, provided the policy for expeditious separation from the Army.  A medical proceeding conducted by an Entrance Physical Standards Board, regardless of the date completed, must establish that a medical condition was identified by an appropriate medical authority within 6 months of the Soldier's initial entrance on active duty, that the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at the time of enlistment, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501, chapter 3.

14.  AR 635-5-1 (Separation Program Designator (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 regulation in effect at the time identified the SPD code of JFT as the appropriate code to assign to Soldiers separated under the provisions of chapter 5, Army Regulation 635-200, who did not meet procurement medical fitness standards.

15.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred/aggravated during military service and subsequently affect the individual's civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant enlisted on 20 June 1975 and          13 days later he was diagnosed with chrondromalacia patella.  On 3 July 1975, a MEB found him medically unfit for enlistment in accordance with current medical fitness standards and determined his condition of chrondromalacia patella EPTS.  

2.  He was counseled on the recommendation of the MEB and agreed with the board's findings and recommendations.  He requested to be separated from the service.  On 30 July 1975, he was discharged from the service.  

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 discharge were appropriate considering all of the facts of the case.

4.  In view of the foregoing, his request should be denied.

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)                                         AR20140016808



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ABCMR Record of Proceedings (cont)                                         AR20140016808



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