MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           20 July 2000                   
	DOCKET NUMBER:   AR2000037847

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler 		Chairperson	
	Ms. Ann M. Campbell 		Member	
	Mr. Kenneth L. Wright 		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that the characterization of his discharge as “Uncharacterized” be changed to Honorable, and that his record show that he was discharged because of his medical condition.

APPLICANT STATES:  That he was discharged because of his medical condition. The description of his discharge on his DD Form 214 (Certificate of Release or Discharge from Active Duty) prevents him from obtaining a certificate of eligibility.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant entered on active duty on 3 July 1996 and was assigned to Fort Sill, Oklahoma for training. 

A 19 July 1996 medical report indicates that the applicant was treated for a right foot condition.  That report indicated that his condition possibly existed prior to his service (EPTS).  A 31 July 1996 medical report indicates that x-rays were performed on his right foot, and a provisional diagnosis made of a possible pathological fracture, a condition that existed prior to his service.

A 2 August 1996 medical report indicates that the applicant injured his right foot on 3 July 1996 when he was on the top bunk and leaped down.  Radiographs revealed a fracture through the base of the second metatarsal.  Subsequent diagnostic evaluations included a CT scan, which revealed a probable pathologic fracture.  The orthopaedic surgeon who evaluated the applicant’s injury stated that he discussed the applicant’s condition with the chief of radiology as well as with a consulting orthopaedic surgeon from Brooke Army Medical Center.  The impression was that the applicant’s condition was an EPTS condition with the integrity of the cortical bone and metaphyseal bone already decreased prior to his coming in the service.  The doctor stated that the applicant needed to be “EPTS’d for this condition.” 

A 6 August 1996 DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings shows that that applicant had been seen numerous times complaining of right foot pain, had numerous x-rays, and had a scar on his right foot.  That form indicated that the orthopedist recommended that he be discharged because his condition existed prior to service (EPTS).  The proceedings indicated that he had foot pain prior to his entry on active duty and that radiology’s impression was that the integrity of cortical bone and metaphyseal bone was already decreased prior to his coming on active duty.  His condition was diagnosed as right foot metatarsal fracture secondary to pre-existing osteoid osteoma.  The board recommended that the applicant meet a medical board for consideration of separation.  It stated that he did not meet medical fitness standards for enlistment or induction, his condition existed prior to his service (EPTS), with an approximate date of origin in 1995, and that his condition was not service aggravated.  The board stated that the applicant did not meet the medical standards for retention in the Army.  The medical authority approved the findings of the board on 16 August 1996.

The applicant stated that he had been informed of the medical findings, that he had the right to consult with an attorney, and that he could request to be discharged from the Army without delay or to request retention on active duty.  He concurred with the board proceedings and requested to be discharged from the Army without delay.

On 21 August 1996 the separation authority directed that the applicant be discharged from the Army.
  
The applicant was discharged under the provisions of Army Regulation 635-200, paragraph 5-11, for failure to meet procurement medical fitness standards, on      28 August 1996.  He had 1 month and 26 days of service.  His service was Uncharacterized. 

On 31 August 1998 the Board of Veterans’ Appeals determined that there was clear and unmistakable evidence that the applicant had a right foot condition, diagnosed as an asymptomatic bone tumor of the second metatarsal of the right foot, that existed prior to his enlistment in the Army.  That board also determined that he sustained an injury to his right foot during his service, and that following a period of in-service treatment, he was diagnosed as having a right foot fracture probably secondary to the pre-existing osteoid osteoma.  The board stated that the evidence of record reflected that the applicant’s right foot disorder was currently diagnosed as a symptomatic non-union fracture of the second metatarsal of the right foot, and that his pre-existing right foot disorder was aggravated by his period of active duty.

In October 1998 the VA notified the applicant that his right foot condition was disabling and awarded him a 10 percent service connected disability rating. 

Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel from active duty.  Paragraph 5-11 provides for the early separation (within the first six months) of those individuals who were not qualified under procurement medical standards, who manifested symptoms of medical problems that would have made them not qualified under procurement medical standards or who became not qualified prior to entry.  Although a soldier in such circumstance has a right to request retention, an individual has no right to be
retained.  The retention or separation decision is within the cognizance of the appropriate discharge authority.  Except in certain extraordinary cases,
uncharacterized entry level separation is mandatory for all individuals who are in an entry level status (within the first 180 days of active duty) at the time separation processing is commenced.
Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  Paragraph 3-3 of that regulation 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 provided included scars, healed fractures, congenital malformations and hereditary conditions, and 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.

Paragraph C-12 of Appendix C of that regulation states in pertinent part, that a soldier with less than 6 months’ service cannot receive severance pay.  The soldier may apply to the VA for disability compensation. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  Competent medical personnel, on various occasions, determined that his right foot condition existed prior to his entry into the Army.  Medical authority also determined that his condition was not service aggravated, and that he should be discharged because of his EPTS condition.  The applicant agreed, and requested to be discharged without delay.  The applicant’s discharge for his EPTS condition was proper.  The characterization of his service is correct. 

2.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___sac__  ___klw___  ___amc__  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000037847	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000720	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  177	108.00	
2.	110.00	
3.		
4.		
5.		
6.