MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:    

		BOARD DATE:          30 October 2003                    
		DOCKET NUMBER:  AR2003088413

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Curtis L. Greenway		Chairperson	
	Mr. Ernest W. Lutz		Member	
	Mr. Larry C. Bergquist		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 his discharge due to being medically disqualified under enlistment medical standards, be corrected to a retirement due to physical unfitness.

APPLICANT STATES:  That he was 17 years old at the time of enlistment and had to have his parents, as legal guardians, sign for him to enlist.  When he enlisted, the military became his legal guardian.  The military let him down in this capacity.  When he was in basic combat training, he was subjected to tear gas.  Shortly thereafter, he began having problems with his eyes.  When he was treated by military physicians for his eye problems, the physicians gave him steroid injections in his eyes.  Ten days after his enlistment into the Regular Army, they told him he was being discharged.  He couldn’t read the forms he signed at that time since he couldn’t see well enough to read them.  He was not appointed legal counsel to advise him of his rights anytime during this process, and he did not realize that he would lose his rights as a veteran if he accepted the discharge.  He has been told that his military medical records have been lost, but the Department of Veterans Affairs (VA) are able to find documents which are detrimental to his case.  One example is a statement allegedly signed by him saying that he had his eye condition before entering the Army.  He contends that this is a boldface lie.  He did not have any eye condition before entering the Army, and he did not sign any statement saying that he did.  When he was being processed for enlistment, he took his written examinations without any trouble.  When he entered active duty with the Army, he passed his shooting qualification tests with flying colors.  So it stands to reason that his condition either was caused by, or was aggravated by, his military service, which warrants a medical retirement.

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

He enlisted in the Regular Army on 7 November 1969.  On 18 November 1969, he signed a form stating “I request discharge from the service . . . as I feel that at the time of my induction into the service, I did not meet the applicable medical fitness standards for induction in effect at that time.”  The signature on that form appears to be the same signature used by the applicant on his enlistment documents.

The applicant’s military medical records are not contained in his military personnel records jacket.

On 22 December 1969, the applicant was honorably discharged due to his not meeting medical fitness standards at the time of enlistment.

Army Regulation 635-200, paragraph 5-9, in effect at the time, stated that soldiers who entered on active duty with a medical condition that was disqualifying under the procurement (enlistment) medical fitness standards, but not disqualifying under retention standards, could either submit a request for discharge or sign a statement saying that they wanted to complete their enlistment or induction.  

Army Regulation 600-8-1, then in effect, paragraph 41-8 stated, in pertinent part, that if an Existing Prior to Service (EPTS) condition was aggravated by military service, the finding would be “in line of duty”.  If an EPTS condition was not aggravated by military service, the finding would be “not in line of duty - not due to own misconduct”.  Specific findings of natural progress of the pre-existing injury or disease based on well established medical principles alone, were enough to overcome the presumption of service aggravation.

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a line of duty disability rated at less than 30 percent.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a line of duty disability rated at least 30 percent. 

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

1.  Neither the applicant’s enlistment physical examination, nor the medical records which formed the basis of his discharge, are contained in his MPRJ.  Without these documents, it is impossible to ascertain exactly what occurred in the applicant’s case.  With the existing documentation, there is no indication of even what medical condition formed the basis of the applicant’s discharge.

2.  While the applicant states that he did not sign the statement indicating that his disqualifying medical condition existed at the time of his enlistment, the signature on that document matches up with his signature on other documents in his records.  Without evidence to the contrary, the Board must accept this as the applicant’s signature.

3.  The applicant’s contention that he was not afforded proper counseling and legal representation, at a time when he was a minor under the age of 18, has been considered by the Board.  The Board has weighed this statement against the fact that the applicant, by his own statement, was told he was going to be discharged for medical disqualification on the 10th day of his active duty.  Absent a documented trauma, a finding of medical disqualification this early in his enlistment can only be viewed as a soldier who had the medically disqualifying condition at the time of his enlistment.  The applicant then had the option of electing to remain on active duty or to be discharged.  He elected to be discharged.

4.  Since the applicant signed a statement attesting that he had a medically disqualifying condition which existed at the time of his enlistment, and he elected to be discharged, he was properly discharged.

5.  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

__clg____  __ewl____  ____lcb_  DENY APPLICATION

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

INDEX

CASE ID	AR2003088413	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031030	
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.	108.03	
2.		
3.		
4.		
5.		
6.