IN THE CASE OF:	   

		BOARD DATE:	  6 October 2015

		DOCKET NUMBER:  AR20150000935 


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, a medical evaluation board (MEB) be held to determine if his DD Form 214 (Certificate of Release or Discharge from Active Duty) should be corrected to show in item 28 (Narrative Reason for Separation) that he was discharged from active duty on 7 May 1987 by reason of physical disability with severance pay or by reason of a medical retirement.  
	
2.  The applicant states:

   a.  When he was assigned to B Company, 4th Battalion, 17th Infantry, Fort Ord, CA, he was on a medical profile and was not fit for separation in accordance with Army Regulation (AR) 40-501 (Standards of Medical Fitness) and AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  He was not afforded the opportunity to go through an MEB and he requests one be conducted now.
   
   b.  He contacted counsel and Mr. DJM, a Veterans benefits counselor and
24-year Army Veteran, to inquire why he was not afforded the opportunity to be given an MEB.  Mr. DJM reviewed his medical [file] and official military personnel file and suggested he file for immediate correction.

3.  The applicant provides:

* a letter from his counsel
* his DD Form 214 for the period ending 7 May 1987
* DA Form 20 (Personnel Qualification Record)
* a self-authored letter to the Department of Veterans Affairs (VA), dated 14 November 2014
* DA Form 664 (Service Member’s Statement Concerning Compensation from the VA)
* three orders, dated between 22 January 1986 and 4 May 1987
* two endorsements

COUNSEL'S STATEMENT:

Counsel states:

	a.  The attached Order 4-4, dated 22 January 1986, transferred the applicant to Wichita Falls, TX.  He never received the endorsement, dated 18 February 1986, subject:  Enlisted Disability Separation, affirming his discharge pursuant to AR 635-40, paragraph 4-24e (4) because of his transfer to Wichita Falls.  

   b.  Order 39-345, dated 27 February 1986, reassigned the applicant to the Army Transfer Point, Fort Ord.  He never received this order because of the order that transferred him to Wichita Falls.  

	c.  Orders 85-328, dated 4 May 1987, discharged the applicant.  Again he never received the order because of the order that transferred him to Wichita Falls.  These documents support the applicant’s claim that correction is necessary.  He is requesting a physical evaluation board (PEB) at this time and any service-related disability be retroactive to 4 May 1987; the date of his discharge.

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, in conjunction with his upcoming enlistment in the Regular Army (RA) he underwent a medical examination on 30 October 1984.  His record contains Standard Form (SF) 88 (Report of Medical Examination) wherein it shows on 30 October 1984 he was given a physical profile of 3 in the P (Physical Capacity (Stamina)) category of the PULHES and was found not to be qualified for enlistment.  It is unclear what the disqualifying defect/condition was.  On 2 November 1984, he again underwent an additional medical examination.  The examining physician crossed out the entries in block 74 (Summary of Defects and Diagnosis) of the SF 88 and corrected his physical profile in the P category of the PULHES to 1.  He was found qualified for enlistment in the RA. 

3.  His record shows he enlisted in the RA on 27 November 1984 and he held military occupational specialty (MOS) 11B (Infantryman).  On 31 March 1985, he was assigned to B Company, 4th Battalion, 17th Infantry, Fort Ord.  He was reported as absent without leave from his assigned unit from 13 August through 10 September 1985 (29 days).

4.  The complete facts and circumstances surrounding the applicant’s separation processing are not available for review with this case; however, it appears he was diagnosed with asthma that existed prior to his entry in the service (EPTS) that prevented him from performing the duties required of his MOS.  It also appears an MEB was conducted and confirmed his unfitting condition of asthma and recommended he go before a PEB. 

5.  On 3 June 1985, by disposition form, the Patient Administrative Division, Silas B. Hayes Army Community Hospital (ACH), Fort Ord, notified his commander that the applicant had been referred for PEB action.

6.  On 4 June 1985, he was issued a DA Form 3349 (Physical Profile Board Proceedings) that shows a PEB was conducted on that date and he was given a permanent profile of 4 in the P category of the PULHES for asthma.  This form shows the condition as EPTS and was service accentuated due to running and field activities (emphasis added).  It stated he should avoid running and field activities until he was separated from the service.  On 26 June 1985, the Division Surgeon, Fort Ord, approved the board findings by and signed and dated the DA Form 3349.

7.  On 15 January 1986, he was assigned to the Medical Hold Company, U.S. Army Medical Department Activity (MEDDAC), Fort Ord.  

8.  The applicant provides, and his record contains, Orders 4-4, dated 22 January 1986, issued by Headquarters (HQ), U.S. Army MEDDAC, Fort Ord, wherein it shows he was directed to proceed on a permanent change of station (PCS) with a report date of on or about 5 February 1986.  These orders, in part, stated having appeared before a PEB, he was ordered to report to 1XXX Sxxxxx Txxxxxx, Wichita Falls, TX, to await final orders and disposition as directed by the Secretary of the Army.  He would proceed on PCS to the place designated and would remain there to await further orders in connection with his PEB proceedings.  

9.  His record contains a DA Form 664, dated 30 January 1986, wherein, in part, it shows at the U.S. Army Separation Transfer Point, Fort Ord, he was advised of his right to seek compensation from the VA for any medical issues/conditions he might have.  He signed and dated this form on 30 January 1986 and he checked the blocks on the form to indicate:

* he had not filed an application for compensation from the VA
* he understood that he may file after his separation from the Army

10.  On 30 January 1986, he also completed a DD Form 1407 (Dependent Medical Care and DD Form 1173 (Military Dependent Identification Card) Statement.  This form shows his date of separation as 6 March 1986.  He signed and dated this form on 30 January 1986 and he checked the block on the form to indicate:

* he was being separated other than retirement and understood, effective the date of his separation, his dependents would not be entitled to medical care
* he was unable to surrender the DD Form 1173 issued to his dependent as he was on a PCS to his home

11.  The applicant provides, and his record contains an endorsement to a memorandum, dated 18 February 1986, subject:  Medical Disability Separation, from HQ, 7th Infantry Division and Fort Ord, to the Commander, MEDDAC, wherein it stated:

* the applicant would be discharged under the provisions of AR 635-40, paragraph 4-24e(4) and would be issued an Honorable Discharge Certificate
* the unit commander would immediately initiate separation preprocessing, installation clearance would be completed prior to separation, and final separation processing would be coordinated between the unit commander and the Chief, U.S. Army Separation Transfer Point

12.  The applicant provides, and his record contains, Orders 39-345, dated 27 February 1986, issued by HQ, 7th Infantry Division and Fort Ord, wherein it stated [the applicant] was reassigned to the U.S. Army Separation Transfer Point for separation processing.  After processing, you are discharged from the Army on 6 March 1986.  These orders shows the applicant’s unit as the Medical Holding Company.  

13.  His record contains a DD Form 214 wherein it shows he was honorably discharged on 6 March 1986 under the provisions of AR 635-40, paragraph
4-24e(4), by reason of physical disability without severance pay.  Item 19 (Mailing Address After Separation) contains the entry “1XXX Sxxxxx Txxxxxx, Wichita Falls, TX.”  Item 21 (Signature of Member Being Separated) contains the entry “Member not available to sign.”  This DD Form 214 shows he was credited with completing 1 year, 3 months, and 6 days of creditable active service with 29 days of lost time.

14.  His record contains a conversation record, dated 30 April 1987, wherein a Mr. CA, Fort Ord, contacted a Ms. P_____, HQ, Department of the Army, to inquire about disability separation messages of two Soldiers from the previous year that he needed to know what to do with.  One was the applicant with a message that was sent out 18 February 1986 with a “not later than separation date of 18 March 1986.”  Mr. CA could not find if orders were cut on the applicant and stated he was no longer in the database.  Ms. P_____ told him the applicant would have to be separated and she authorized a separation date of 7 May 1987. 

15.  The applicant provides and his record contains a DD Form 214 wherein it shows he was honorably discharged on 7 May 1987 under the provisions of AR 635-40, paragraph 4-24e(4), by reason of physical disability without severance pay.  Item 18 (Remarks) of this form contains the entry “Separated from service on temporary records and Soldier’s affidavit.”  This DD Form 214 shows he was credited with completing 2 years, 4 months, and 11 days of creditable active service with no lost time.

16.  There is no evidence in the available records that shows the applicant was diagnosed with any medical issues/conditions other than asthma that prevented him from performing his assigned duties and should have also been considered by the MEB/PEB.

17.  Army Regulation 635-40 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.
18.  Army Regulation 635-40, chapter 4, in effect at the time, 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.  Paragraph 4-24e(4) provided for separation for physical disability without severance pay for an EPTS condition.

19.  Army Regulation 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant suffered from asthma, a medical condition that rendered him unable to satisfactorily perform the duties of his grade and military specialty.  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.  Consequently, his records appear to have been evaluated by an MEB.

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 for physical disabilities noted and recorded at the time of entry or when there is an evidence of an EPTS condition that is discovered shortly after entry on active duty.  As a matter of policy, the Army accepts many members with EPTS conditions on the chance that they can successfully complete training and serve. When disqualifying symptoms occur during training or shortly after entry on active duty, these individuals are procedurally subject to separation based on the EPTS condition.

3.  The applicant's MEB presumably showed he suffered a medical condition that was determined to have been EPTS, was not aggravated by service, and was not incurred in the line of duty.  The medical board diagnosed him as unfit for retention.  He appears to have requested (demanded) a hearing before a PEB, which was his right to do.  The PEB found him unfit due to his EPTS condition of asthma and recommended his separation without entitlement to severance pay.  He was discharged by reason of physical disability without severance pay due to this EPTS condition.

4.  It is unclear why he was issued two DD Forms 214; however, both forms show the same narrative reason for separation.  His narrative reason for separation was assigned based on his separation under the provisions of chapter 4 of Army Regulation 635-40 due to his EPTS condition.  Absent the medical condition, there was no fundamental reason to convene an MEB/PEB.  The underlying reason for his MEB/PEB was his EPTS condition.  The applicant received the proper narrative reason for separation.  It is noted that the applicant's narrative reason for separation includes “disability” which is a medical discharge.  There is neither an error nor an injustice.

5.  The ABCMR does not correct records for the purpose of establishing entitlements to other programs or benefits.  The applicant did not provide any evidence or sufficiently mitigating argument to warrant a change in the narrative reason for separation.  

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)                                         AR20150000935





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ABCMR Record of Proceedings (cont)                                         AR20150000935



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