IN THE CASE OF: BOARD DATE: 20 October 2022 DOCKET NUMBER: AR20190010603 APPLICANT REQUESTS: reconsideration of his previous request to show he was discharged in 1977 due to physical disability rather than failing to meet medical procurement standards. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Board of veterans Appeals, 22 November 2116 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20160009103, on 28 November 2018. 2. The applicant states he was given an honorable discharge after being examined by a urologist for an injury during his advanced individual training at Fort Benning, GA. He has been appealing for benefits since 1978. Finally in November 2016, he was awarded all benefits after an appearance before a Judge with the Board of Appeals. In his decision, he (the judge) granted him a service-connected disability. He would like it to show that he was Honorably discharged for a service-connected disability as decided by the Board of Veterans Appeals, Department of Veterans Affairs. The Army should have given an honorable discharge for service-connected disability rather than showing he was discharged for not having two testicles. 3. Review of the applicant’s service records shows: a. In connection with his enlistment in the Regular Army, on 9 December 1976, the applicant underwent a medical examination. The provider stated the applicant's left testicle was normal. The right testicle appeared to be atrophic and was felt as a small nubbin in the right scrotum. There was no evidence of any testicular mass above the scrotum to the level of the right external inguinal ring. There was no hernia. The findings in no way limited the applicant's physical activity or wellbeing. The applicant had no subjective complaints and otherwise was perfectly normal in every respect. b. The applicant enlisted in the Regular Army on 30 December 1976. He was assigned to Company D, 2nd Battalion, 1st Advanced Individual Training Brigade, Fort Benning, GA for training. c. Shortly after entry on active duty, he experienced pain in left testicle during physical training. During his medical examination, he indicated he felt that he was unable to keep up because of fear of injuring his left testicle. He desired discharge from the service. (1) Examination: normal phallus, left testes, epididymis, cord normal; right testes not palpable. No inguinal hernia. Prostate normal. Abdomen normal. (2) Diagnosis: Right cryptorchism. (3) Recommendation: unfit for service in accordance with chapter 2 of Army Regulation (AR) 405-10 (Standards of Medical Fitness). d. The applicant was placed on a physical profile on 1 March 1977, for an undescended right testicle. His physical profile consisted of limited duty. e. On 2 March 1977, a medical board convened and after careful consideration of clinical records, laboratory findings, health records, and medical examinations, the applicant was found not medically qualified for further military service in accordance with procurement medical fitness standards. His diagnosis: Right cryptorchism (Paragraph 2-14(m)(3) of AR 40-501). The medical board determined that his condition existed prior to service and recommended separation from the service under the provisions of AR 635-200 (Personnel Separations), paragraph 5-9. f. The applicant concurred with the findings and recommendation of the medical board on 9 March 1977. He placed his initials in block 24 of the DA Form 8-118 (Medical Board Proceedings) stating he did not desire to continue serving on active duty. g. He was honorably discharged on 15 March 1977. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of paragraph 5-9 of AR 635-200 for “Failure to meet established physical standards (no disability).” His DD Form 214 shows he completed 2 months and 16 days of net active service this period. h. In May 2016, he applied to this Board to amend his DD Form 214 to show his separation was for the convenience of the government because of his medical condition. Prior to adjudicating his case, the Board requested a medical review of his case. This medical review showed: (1) The applicant did not meet medical accession standards for EPTS (existed prior to service) right cryptorchidism (right undescended testicle) IAW Chapter 2, AR 40- 501, and following the provisions set forth in AR 635-40 that were applicable to the applicant's era of service: Symptomatic right (and left) groin pain with EPTS condition. (2) The applicant met medical retention standards for left groin pain and other physical, medical, dental and/or behavioral conditions IAW Chapter 3, AR 40-501, and following the provisions set forth in AR 635-40 that were applicable to the applicant's era of service. (3) The applicant presented with left groin pain occurring during physical training (descended testicle/normal) with the concurrently absent and history of painful right scrotum/testicle (undescended/abnormal). (4) The applicant's medical conditions were duly considered during medical separation processing. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. i. On 28 November 2018, the Board denied his request after it determined the evidence presented did not demonstrate the existence of a probable error or injustice. j. The applicant provides a decision, dated 22 November 2016, by the Board of Veterans Appeals, Department of Veterans Affairs, granting him service-connection for a right undescended testicle. 13. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is again applying to the ABCMR requesting, in essence, a referral to the Disability Evaluation System. He states: (1) “I was given a Honorable Discharge after being examined by a urologist for an injury during my AIT at Ft. Benning GA. I had been appealing for benefits since 1978. Finally in Nov. of 2016, I was awarded all benefits after an appearance before a Judge with the Board of Appeals. In his decision he granted me a service-connected disability. I would like it to show that I was Honorably Discharged for a service-connected disability as decided by the Board of Appeals. (2) I should of been given an Honorable discharge for service connected disability rather than showing I was discharged for not having two testicles.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows he entered the regular Army on 30 December 1976 and was honorably discharged on 15 March 1977 under the authority provided in paragraph 5-9 of AR 635-200, Personnel Separations – Enlisted Personnel (30 March 1976): Discharge of personnel who did not meet procurement medical fitness standards. c. This request was previously denied in full on 28 November 2018 (AR20160009103). Rather than repeat their findings here, the board is referred to the record of proceedings and medical advisory opinion for that case. This review will concentrate on the new evidence submitted by the applicant. d. The only new evidence in the 22 November 2016 results of the Board of Veteran’s Appeals. Form this decision: (1) In cases where a condition is noted on the entrance examination report, the "presumption of sound condition" does not apply; instead, a "presumption of aggravation" governs the outcome of the case. 38 U.S.C.A. § 1153 (West 2014). Under this presumption, a preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in said disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. (2) The record reflects the Veteran-entered service in December 1976 with an undescended right testicle. A letter from a physician also dated December 1976, indicates the right testicle was undescended, atrophic, and described as a "small nubbin" in the right scrotum. The doctor indicated that the undescended testicle would not limit his physical activity and that the Veteran, as of that time, had never had any complaints regarding it. Although an abnormality was noted, he was accepted into service, and rated a "1" under the PULHES physical profile. (3) Within a few months of acceptance, he began to experience pain while exercising or performing physical training. He was permitted to take time off from training, and referred to a urologist, who diagnosed him with cryptorchidism and testalgia (testicular pain). The physician indicated that discharge should be considered. He was discharged in March 1977. (4) The January 2011 VA examiner opined that it was as likely as not that the "aggravated undescended testicle" that was noted in service is correctly diagnosed and related to his in-service diagnosis. (5) Based on this evidence, the Board finds there was an increase in disability during service. A “presumption of aggravation” of the pretexting condition has been established.” e. No additional new evidence was submitted with case. f. The applicant was separated under authority provided by paragraph 5-9 of AR 635-200: “Individuals who were not medically qualified under procurement medical fitness standards when accepted for induction or initial enlistment will be discharged when a medical board, regardless of the date completed, establishes that a medical condition was identified by appropriate military medical authority within 4 months of the member's initial entrance on active duty or active duty for training under the Reserve Enlistment Program of 1963 which- (1) Would have permanently disqualified him for entry into the military service had it been detected at that time; and (2) Does not disqualify him for retention in the military service under the provisions of chapter 3, AR 40-501.” g. The applicant’s pre-entrance Report of Medical History and accompanying Report of Medical Examination were not available for review. h. The applicant was referred to a medical evaluation board for testalgia. From the medical board medical summary: “HISTORY OF PRESENT ILLNESS: 23-year-old male with undescended testes on the right who was seen by me for pain in left testicle during P.T.{physical training}. He feels that he is unable to keep up because of fear of injuring his left testicle. He desires discharge from the service.” i. The examiner documented a normal left testicle and that the right testicle was not palpable, diagnosed the applicant with right cryptorchidism, and found him unfit for continued service under paragraph 2-14m3 of AR 40-501, Standards of Medical Fitness (27 May 1976). This paragraph states an undescended testicle is cause for rejection for enlistment and induction. j. On 2 March 1977, the medical evaluation board determined the condition had existed prior to service and to be incompatible with military service. They recommended the applicant be separated from service under provisions in paragraph 5-9 of AR 635- 200. On 9 March 1977, the applicant signed under and initialed next to the statement “I have been informed of the approved findings and recommendations of the Board,” and both marked and initialed under the box indicating he did not desire to continue on active duty. k. The applicant was appropriately discharged under paragraph 5-9 of AR 635-200, and this is not affected by the VA’s service connecting the condition. The VA will service connect a condition when the Veteran has the onset of symptoms during a period of service with little regard to the length of service during which the condition presented, to include congenital and genetic conditions not eligible for disability processing. l. It is the opinion of the ARBA Medical Advisor that a referral of his case to the Disability Evaluation System is remains unwarranted. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Based upon the available documentation and the findings and recommendation of the medical advisor, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s narrative reason for separation. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. REFERENCES: 1. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR 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. 2. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), then in effect, provides for the separation of enlisted personnel. Chapter 5 (Separation for Convenience of the Government), paragraph 5-9 states commanders are authorized to discharge individuals who are not medically qualified under procurement medical fitness standards when accepted for induction or initial enlistment. A medical board must find that the individual has a medical condition which would have permanently disqualified him for entry in the military service had it been detected at that time. The condition does not disqualify him from retention in the military service under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. A request for discharge will be submitted by the individual to his unit commander within four months from date of initial entry on active duty or initial entry on active duty for training. 3. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190010603 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1