AR20150010018

IN THE CASE OF:

BOARD DATE: 26 May 2016

DOCKET NUMBER: AR20150010018

BOARD VOTE:

____X_____ ___X____ ____X____ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

2Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

IN THE CASE OF:

BOARD DATE: 26 May 2016

DOCKET NUMBER: AR20150010018

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 his DDForm214 as follows:

* item3 showing his SSN as XXX-XX-3579
* item9c showing the authority and reason as “Army Regulation 635-40, chapter5, SPDJFM.”

_____________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.

IN THE CASE OF: .

BOARD DATE: 26 May 2016

DOCKET NUMBER: AR20150010018

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, correction of his DDForm214 (Report of Separation from Active Duty) to show:

* his complete social security number (SSN)
* he was medically discharged

2. The applicant states:

* the last two digits of his SSN are not present
* his type of separation is not listed as medical

3. The applicant provides:

* social security card
* DDForm214

CONSIDERATION OF EVIDENCE:

1. Title10, U.S.Code, section1552(b), provides that applications for correction of military records must be filed within 3years 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 19August 1975, the applicant underwent an enlistment physical examination and was he found qualified for enlistment. He listed his SSN as XXX-XX-3579.

3. He enlisted in the Regular Army on 28August 1975. His DDForm1966 (Application for Enlistment Armed Forces of the UnitedStates) and DDForm4 (Enlistment or Reenlistment Agreement Armed Forces of the UnitedStates) show his SSN as XXX-XX-3579.

4. His StandardForm502 (Clinical Record Narrative Summary), dated 30April 1976, shows:

a.On 1April 1976, he was admitted to the U.S.Army Hospital, FortCarson, CO, for an acute flair of ulcerative colitis, after having an increase of symptoms in late February 1976.

b.He had a known history of this disease prior to his entrance on active duty.
His history of this illness shows he had had ulcerative colitis since July 1974 while in a civilian hospital in Massachusetts.

c.His physician recommended his immediate discharge for a condition that existed prior to service (EPTS) with no service aggravation under the provisions of Army Regulation635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter3.

5. His StandardForm88 (Report of Medical Examination), dated 10May 1976, shows he underwent a medical evaluation board (MEB) examination which diagnosed him with ulcerative colitis, EPTS. The MEB found him unfit for retention and recommended his expeditious discharge.

6. His DAForm8-118 (MEB Proceedings), dated 10May 1976, shows:

a.the MEB diagnosed him with ulcerative colitis, EPTS;

b. the MEB recommended his discharge under the provisions of Army Regulation635-40, chapter5; and
c.he did not desire to continue on active duty.

7. On 10May 1976, he completed a DAForm2496 (Disposition Form) wherein he requested discharge due to physical disability. He stated he had been advised he was not considered qualified for retention by reason of physical disability which had been found to have EPTS and which was neither incident to nor aggravated by military service. He elected not to exercise his right for consideration of his case by the adjudicative system established by the Secretary of the Army for processing disability separations. He also acknowledged that he would be separated by reason of physical disability, EPTS.

8. The findings and recommendations of the MEB were approved on 18May 1976. He was notified of the approved MEB findings and recommendations on 20May 1976.

9. His chain of command concurred with the recommendations and findings of the MEB. On 16June 1976, the separation authority approved his separation under the provisions of Army Regulation635-40, chapter5. He directed the issuance of a DDForm214 with the comment, “Severance Pay Not Authorized” in item30 (Remarks), and issuance of an Honorable Discharge Certificate.

10. On 22June 1976, he was honorably discharged. His DDForm214 shows in:

* item3 (Social Security Number) XXX-XX-35
* item9a (Type of Separation) Discharge
* item9c (Authority and Reason) lined through
* item10 (Reenlistment Code) lined through
* item27 (Remarks)

* “Individual requests copies of DDForm214” followed by his initials
* “Physical Disability-EPTS-PEB [Physical Evaluation Board]”

11. His DAForm2139 (Military Pay Voucher) is not available for review.

12. On 15August 1978, he was issued a DDForm215 (Correction to DDForm214) which amended his DDForm214 as follows:

* item10 RE-3
* item27 AppendixC, Army Regulation601-210 (Regular Army Enlistment Program) applies

REFERENCES:

1. Army Regulation635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. It establishes the Army Physical Disability Evaluation System according to the provisions of Title10, U.S.Code, chapter61, and Department of Defense Directive1332.18 (Disability Evaluation System). It 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. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

2. Army Regulation635-40, chapter5 (Separation for Non-Service Aggravated, EPTS Conditions upon Soldier’s Waiver of PEB) provides for separation of an enlisted Soldier for non-service aggravated EPTS conditions when the Soldier requests waiver of a PEB evaluation.

a.Separation under the authority of this chapter is not to be confused with separation under the provisions of Army Regulation635-200 (Personnel Separations Enlisted Personnel), chapter5. The latter provides for involuntary separation within the first 6months of entry onto active duty for failure to meet procurement fitness standards. If the time period exceeds 6months or if the condition is disqualifying under Army Regulation40-501 (Standards of Medical Fitness), chapter3, a Soldier is entitled to evaluation by a PEB or may waive evaluation under this chapter.

b.Commanders with special court-martial convening authority may approve or disapprove discharge of a Soldier of his or her command processed under this chapter if no adverse administrative or disciplinary action is pending against the Soldier. This authority may not be further delegated. Commanders authorized to effect the discharge of Soldiers under provisions of this chapter will effect such discharge expeditiously.

c.No medical examination will be accomplished during separation processing unless there is reason to believe that material change has occurred in the Soldier’s physical or mental condition since his or her appearance before the MEB.
d.The U.S.Army Military Personnel Center will take final action for the disposition of the Soldier to direct separation for physical disability without severance pay under the provisions of Title10, U.S.Code, section1203, for a Soldier whose unfitting disability was neither the proximate result of performing active duty nor incurred in line of duty in time or war or national emergency, and the Soldier has less than 8years of service under Title10, U.S.Code, section1208.

3. Army Regulation601-210 prescribes eligibility criteria governing the enlistment of persons with or without prior service into the Regular Army, U.S.Army Reserve, and Army National Guard. AppendixC, in effect at the time, listed disqualifications for which a waiver could be submitted. The Commanding General, U.S.Army Military Personnel Center, was the approval authority for former Soldiers separated under the Expeditious Discharge Program.

4. Army Regulation635-5 (Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers upon retirement, discharge, or release from active duty service or control of the Active Army. It established standardized policy for preparing and distributing the DDForm214. The instructions stated to transcribe the SSN from the individual’s DAForm2139.

5. Army Regulation635-5-1 (Separation Program Designators (SPD)), in effect at the time, provided a listing of specific authorities and reasons for separation from active duty, active duty for training, or full-time training duty. The appendix (SPD and Authority Governing Separations) shows Army Regulation635-40, paragraph5-8e(4), as the regulatory authority for Soldiers involuntary discharged under Title10, U.S.Code, sections1162(a), 1165, and 3814. The reason for separation was listed as physical disability-EPTS-PEB with an SPD code of JFM.

DISCUSSION:

1. Although the applicant’s DAForm2139 is not available for review, he listed his SSN as XXX-XX-3579 at the time of his enlistment in the Regular Army. An administrative error occurred during preparation of his DDForm214 regarding his SSN. His complete SSN was not listed on his DDForm214 in accordance with the governing regulation.

2. The evidence of record confirms the applicant’s ulcerative colitis EPTS and he failed to disclose this information at the time of his enlistment.

3. He was evaluated by an MEB and found unfit for continued service. He concurred with the findings and recommendations of the MEB and waived a PEB evaluation. The separation authority directed his separation under the provisions of Army Regulation635-40, chapter5. His separation orders incorrectly cited the separation authority as Army Regulation635-200 and his DDForm214 does not show any separation authority.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20150010018

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20150010018

6

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2