BOARD DATE: 19 January 2016 DOCKET NUMBER: AR20150006557 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 correction of his records to show his physical disability occurred while he was on active duty and did not exist prior to service (EPTS). 2. The applicant states that after he was discharged from the Regular Army, it was determined that his disabilities were incurred as a result of immunizations given him while on active duty. The Department of Veterans Affairs (VA) subsequently granted him a service-connected disability rating of 90 percent. 3. The applicant provides a copy of his VA service-connected compensation decision. 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 10 June 1999, the applicant enlisted in the Regular Army. He was assigned to the Infantry Training Brigade at Fort Benning, Georgia. 3. His DD Form 214 shows he was honorably discharged on 2 August 1999 due to his failure to meet procurement medical fitness standards in accordance with Army Regulation 635-200, paragraph 5-11. He completed 1 month and 2 days of active service. 4. The applicant’s service medical records are not available for review. 5. A review of the applicant’s Official Military Personnel Records failed to show any documentary evidence related to the circumstances of his discharge. 6. A VA letter, dated 1 November 2013, as provided by the applicant, states his service-connected compensation for the following conditions was adjusted effective 1 December 2012. a. Polyradiculoneuropathy (CDIP) right upper extremity, increased from 10 to 30 percent; b. CDIP, left upper extremeity, increased from 10 to 20 percent; c. CDIP, right lower extremeity, increased from 20 to 40 percent; d. chronic inflammatory demyelinating CDIP with Guillian-Barre syndrome, left lower extremity, increased from 20 to 40 percent; and e. Reiter’s syndrome continued at a 20 percent rating. 7. The VA letter that the applicant provided did not include a copy of the VA Rating Decision. 8. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 5-11 states Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment or who became medically disqualified under these standards prior to entrance on active duty, active duty training, or initial entry training will be separated. A medical proceeding, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within six months of the Soldier’s initial entrance on active duty, that the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at that time, and that the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501, chapter 3. The characterization of service for Soldiers separated under this provision will normally be honorable, but will be uncharacterized if the Soldier is in an entry-level status. 9. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. It 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 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. 10. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation. Chapter 2 provides the physical standards for enlistment/induction. 11. Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. 12. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) provides that the Board begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his military records should be corrected to show he incurred a physical disability while on active duty. 2. The applicant argues that his physical disability resulted from immunizations given to him while on active duty. Unfortunately, he has not provided any documentary evidence to support his contention. A review of his available military records failed to show any evidence that would corroborate his contention. 3. Law permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. In this case, it is reasonable to presume that the applicant’s EPTS condition was aggravated by military service and accordingly compensated by the VA. 4. Absent convincing independent and verifiable evidence to the contrary, it is presumed that the applicant's military service records were correct at the time of his discharge. 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) AR20150005861 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006557 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1