IN THE CASE OF:	  

		BOARD DATE:	  3 September 2015

		DOCKET NUMBER:  AR20150000951 


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, to change his rank/grade from private (PV1)/E-1 to second lieutenant (2LT)/O-2, the rank which he was given by his Professor of Military Science (PMS) and the President of the Tuskegee Institute, AL.

2.  The applicant states, in effect:

* he is a Tuskegee Institute graduate who participated in their Reserve Officers' Training Corps (ROTC) program
* he studied for 4 years, taking both basic and advanced ROTC classes
* he vigorously pursued advancement and moved up the ranks to become the company commander designate for both his junior and senior years
* he attended two summer camps at Fort Bragg, NC
* he received training as a Green Beret and took advanced studies in counter-intelligence techniques
* while in Green Beret training, a 2LT pulled the pin of a live grenade and froze; the applicant realized the danger, ran over to him, snatched the grenade, and safely threw it after warning bystanders of the live grenade
* the instructor expressed strong appreciation, remarking the applicant's actions had saved lives
* he continued his studies and completed training as a tank commander as well as training in helicopter assaults, insurgent operations, and special operations
* he mastered all military arms, to include portable missile equipment and the howitzer
* his PMS gave him his 2LT bars a few weeks before graduation
* prior to receiving his diploma and military indoctrination, he underwent a final physical
* the attending physician told him he had flat feet and was therefore rejected for military service
* in essence, 4 years of ROTC, advanced training, and 2 years in the capacity as a company commander were simply thrown away
* he feels this was a clear injustice; when he entered the Tuskegee Institute, a full medical disclosure was made and his medical records were available to the Army ROTC department
* his medical condition of flat feet did not hold him back from completing Green Beret and Special Forces training
* he was officially given his 2LT bars and had ordered and paid for dress blues
* on learning the news of his medical disqualification, his PMS immediately went to see the physician in an effort to correct this injustice; his PMS's efforts were in vain
* when his father arrived to attend the graduation commencement ceremony, he was in shock and disappointed at the news the applicant had been rejected for military service; he just got in his car and went back home
* this all happened around the same time Governor George Wallace of Alabama sent the National Guard to the applicant's school
* this occurred because some students sought to reduce tuition costs; it was a way of flexing military might against those students
* the backlash of that effort was having to endure tanks roaming around their dormitories and jeeps equipped with automatic weapons
* the weapons were pointed at them simply for walking on the sidewalk on their way to the cafeteria
* he feels he completed all requirements in good faith and had his rank unfairly snatched away; he requests this injustice be corrected

3.  The applicant provides a DD Form 256A (Honorable Discharge Certificate) and a memorandum, dated 22 October 1971, addressed to the applicant from the Tuskegee Institute ROTC Division, subject:  Disenrollment from Advanced ROTC.

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 22 September 1969, the applicant signed a DA Form 597 (Army ROTC Advanced Course Student's Contract) wherein he agreed, in pertinent part, to:

* continue in the ROTC for the remainder of his course of study at his college
* accept appointment as a Reserve or Regular Army officer if such appointment was offered
* admission to enrollment in ROTC did not commit or bind the Army to offer him an appointment as a Reserve or Regular Army officer; such appointment was dependent upon meeting qualifications prescribed by the Secretary of the Army

3.  The applicant enlisted in the U.S. Army Reserve (USAR) on 8 October 1969 as a cadet.

4.  His medical records are available and contain the following relevant entries:

	a.  A Standard Form (SF) 89 (Report of Medical History), dated 27 May 1969, completed at Martin Army Hospital (MAH), Fort Benning, GA, shows the purpose of the examination as being for Advanced ROTC, appointment (appt) and Combat Arms qualification (qual).  It also has entries of "No" in answer to the question "Have you ever had or have you now:"

* "trick" or locked knee
* foot trouble

	b.  An SF 88 (Report of Medical Examination), dated 27 May 1969, completed at MAH, shows, under the heading Clinical Evaluation, a checkmark indicating "Normal" for feet and lower extremities.  There were no qualifying conditions found during the examination and he was found qualified for Advanced ROTC and appointment in the U.S. Army Reserve and Combat Arms.  

	c.  An SF 89, dated 20 June 1970, completed at Womack Army Hospital (WAH), Fort Bragg, NC, states the purpose was for Advanced Camp, appointment, and Combat Arms qualification.  It also shows:
		(1)  Entries of "Yes" in answer to the question "Have you ever had or have you now":

* "trick" or locked knee
* foot trouble

		(2)  The "Yes" block is checked for the question "Have you had, or been advised to have any operation?" following by a handwritten entry that states "knee, torn ligament."

		(3)  Under "Physician's Summary and Elaboration of all Pertinent Data" are the following remarks:

* knee - right knee, pain when running
* feet - pes planus (flat feet), pain when walking 
* knee brace

	d.  An SF 88, dated 20 June 1970, with a stamped entry stating Office of the Surgeon, headquarters, Third U.S. Army, shows he was qualified for ROTC Camp, appointment in the USAR.  Also shown:

		(1)  Clinical Evaluation, Feet, shows an entry of "pes planus" along with the comment "Orthopedic Consult."

		(2)  Summary of Defects and Diagnosis states "36.  Pes Planus."

		(3)  The applicant was shown as qualified for Advanced Camp, appointment, and Combat Arms qualification.

	e.  An SF 513 (Consultation Sheet), dated 20 June 1970, shows an orthopedic evaluation of the applicant.  It essentially states:

* symptomatic flat feet; wearing corrective shoes for year
* injured right knee in 10th grade; had torn ligament and was told should have an operation but did not follow recommendation
* his knee occasionally gives way, but there was no locking or swelling
* feet, severe pes planus with tenderness over ankles
* impression:

* symptomatic pes planus
* internal derangement of the right knee by history; chondromalacia (inflammation of the underside of the patella)

* Recommendation:

* duty
* arch supports

	f.  An SF 600 (Chronological Record of Medical Care) shows an entry dated 30 June 1970 at WAH while in a training status, states the applicant was seen because his pes planus condition was causing pain.  The applicant had arch supports.  

	g.  An SF 600 contains an entry dated 27 July 1970, completed at WAH, states:

* feet problem; sent to hospital's Podiatry Clinic
* congenital hypermobile pes planus with heel valgus (where joint is twisted outward from the center of the body); relief with arch supports 
* advised to use ace wrap during training

	h.  An SF 89, dated 28 September 1971, completed at MAH, with the purpose shown as being for an appointment in the U.S. Army shows:  

		(1)  Entries of "Yes" in answer to the question "Have you ever had or have you now":

* "trick" or locked knee
* foot trouble

		(2)  The "Yes" block is checked for the question "Have you had, or been advised to have any operation?" following by a handwritten entry that states "pulled or torn ligaments of knee."

		(3)  Under "Physician's Summary and Elaboration of all Pertinent Data," the following comments:

* frequent dislocation of right knee (emphasis added)
* flat feet

	i.  An SF 88, dated 28 September 1971, shows a stamped entry, dated 26 October 1971, which states "Internal derangement of knee, pes planus, paragraph 2-10, Army Regulation (AR) 40-501 (Standards of Medical Fitness)."  It also shows the following:

#36 and #37.  1.  Internal derangement, right knee with tear of medial meniscus and probable partial tear of anterior cruciate ligament.  

2.  Severe pes planus, bilaterally.  Disqualifying for Advanced ROTC, USAR Appointment and/or Induction or Enlistment.

	j.  An SF 513, dated 7 October 1971, completed at the Orthopedic Clinic, MAH, shows the following entries:

This patient is referred for evaluation of frequent dislocations of his right knee.  He injured the knee in a rotatory fashion playing baseball several years ago.  He has had clicking, locking, and popping since.  Examination reveals a very loose patella with some chondromalacia patella.  There is a mildly positive anterior drawer sign [referring to a test performed for knee injuries].  There is a positive McMurray's test [referring to another test performed for knee injuries] but no specific joint line tenderness.  X-rays of the knee are essentially normal.

Diagnosis:  Internal derangement, right knee with tear of medial meniscus and probable partial tear of anterior cruciate ligament.

He also has pes planus.  He was seen in consultation with Major JFN, Department of Podiatry.  Examination shows pronounced pes planus with eversion of the foot [the process of turning inside-out, where the foot is turned or rotated outward] and bulging on the inner border.  His foot is almost totally pronated [turned outward] on normal standing.  X-rays show the above-mentioned deformities.

	Diagnosis:  Severe pes planus, bilaterally.

Patient is unfit under [paragraphs] 2-10c(2) (Lower Extremities - Leg, knee, thigh, and hip - history of internally deranged joint) and 2-10b(5) (Foot and Ankle - flatfoot, pronounced cases with decided eversion and marked bulging of the inner border), Army Regulation 40-501 (Medical Fitness Standards), for USAR appointment.

5.  The applicant's record contains Letter Orders Number 11, dated 22 October 1971, issued by Third U.S. Army ROTC Instructor Group, Senior Division, Tuskegee Institute, subject:  Discharge from the Army Reserve.  It shows the applicant was honorably discharged effective 22 October 1971.  The reason for discharge was disenrollment from ROTC.

6.  The applicant provides a memorandum, dated 22 October 1971, addressed to him from the Third U.S. Army ROTC Instructor Group, Senior Division, Tuskegee Institute, subject:  Disenrollment from Advanced ROTC.  The memorandum essentially states the applicant was disenrolled due to medical disqualification as determined by proper authority.

7.  AR 145-1 (ROTC - Senior Division, Organization, Administration, and Training), in effect at the time, stated in paragraph 3-25 (Disenrollment) that the PMS will disenroll a cadet when he or she is medically disqualified as determined by proper authority (subparagraph a(2)).

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests, in effect, to be given the rank of 2LT based on the contention he completed all training requirements, with the exception of being medically qualified for service.  He asserts his medical condition, flat feet, was known to the Army ROTC program and it was unjust not to allow him to receive an appointment as a 2LT.

2.  The ROTC agreement signed by the applicant clearly states the Army was not obligated to offer an appointment as a U.S. Army Reserve or Regular Army officer.  Additionally, any appointment offered was contingent on the applicant meeting qualification requirements.

3.  The applicant's medical records clearly show he had two disqualifying medical conditions:  right knee and severe pes planus (flat feet).  Additionally, records indicate both conditions appeared to become progressively worse as a result of his participation in ROTC training activities.  

	a.  His first medical examination, on 27 May 1969, makes no mention of either condition.

	b.  A medical examination conducted on 20 June 1970 prior to his participation in Advanced ROTC Camp at Fort Bragg identified both conditions.  After an orthopedic consult and being prescribed arch supports, he was cleared for participation in training.  During the training, however, he was treated twice for foot pain as a result of his pes planus.  The second time he was seen, he is shown as having been sent to the Podiatry Clinic.  In addition to requiring arch supports, the physician recommended the applicant use an ace wrap bandage.  

	c.  He received a final medical evaluation prior to being offered an appointment.  In the orthopedic consult, dated 7 October 1971, it describes frequent knee dislocations and pronounced pes planus.  The orthopedic physician notes the applicant's medical condition is such that his foot is almost totally pronated when he is standing.  Both conditions are determined as failing medical qualification standards.             

4.  Based upon the applicant's assertions, it is evident he sincerely sought an appointment as an Army officer, pursuing the ROTC course of study in good faith.  Unfortunately, based upon his available medical records, the preponderance of evidence clearly indicates his medical conditions existed prior to his entry in the ROTC program, became progressively worse over the course of his participation in ROTC and, at the point when he was being considered for appointment, were determined by proper authority to be severe enough as to fail medical qualification standards.  It therefore appears the finding that he was not medically qualified for appointment as an Army officer was proper and not an injustice. 

5.  Given the foregoing, there is insufficient evidence to support granting 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)                                         AR20150011627



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ABCMR Record of Proceedings (cont)                                         AR20150000951



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