MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            04 FEBRUARY 2003                  
	DOCKET NUMBER:   AR2002077448

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Melvin H. Meyer		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Ronald J. Weaver 		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 her records be corrected to show that she was discharged because of medical reasons.

APPLICANT STATES:  In effect, that shortly after arriving at Fort Jackson, South Carolina for basic training she broke her "right lower leg."  She notes that she was then assigned to the Physical Training Rehabilitation Platoon (PTRP) where she subsequently developed a "secondary injury to [her] left sacroiliac joint" as a result of walking up and down stairs, standing in line, and at attention, and having to get down from the top bunk, all while in a walking cast.  She states that after   3 months with no improvement and increased pain in her back and leg "it was clear to [her] that for medical reasons [she] should get out of the Army by the quickest means possible."  She states that for "speed of exit only" she "accepted a Chapter 11 discharge."  She states that continuing activity "while waiting for a medical discharge" would not do anything "but make the secondary injury worse." She states that she is now receiving a 40 percent disability rating from the Department of Veterans Affairs and underwent surgery in October 2001. In support of her request she submits a chronological listing of medical treatment, including medical expenses, from the time she broke her ankle through April 2001.

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

She entered active duty on 17 February 1999 and was assigned to Fort Jackson, South Carolina for the purpose of undergoing training.  According to a Statement of Medical Examination and Duty Status, the applicant fractured her right ankle while going through an obstacle course on 8 April 1999.

Medical treatment records available to the Board note that medical personnel saw her on 17 June 1999 with a complaint of lower back pain, which she indicated had existed for about 3 weeks.  In mid July, the applicant was seen by medical personnel with a complaint of left hip pain, which she had been experiencing for over 3 weeks.  The physician noted that the applicant had been in a cast for approximately 5 weeks and then in a "walker" for an additional 5 weeks.  The physician prescribed Motrin, ice packs, and exercises.  He issued a profile, which permitted her to walk specific distances for 1 week and then to run at her own pace and distance for 2 weeks.

On 20 July 1999 medical personnel noted that although her ankle felt stiff she was "otherwise doing well" and that she had full range of motion.  The physician indicated the applicant stated that her "buttock pain still comes and goes."  He prescribed medication, and indicated that she should continue her exercises and icing.  

On 27 July 1999 the applicant "walked in" with a complaint of "radiating spine pain."  The physician noted the applicant was "in process of chaptering" and that her evaluation found no evidence of any neurological involvement associated with the applicant's "mechanical" lower back pain.  She prescribed a profile which permitted the applicant to alternate standing and sitting every 15 minutes.  She requested that the applicant return for a follow-up visit on 4 August.

On 9 August 1999 the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 11 (Entry Level Performance and Conduct).  Her service was uncharacterized.  Documents associated with her administrative separation action were not in records available to the Board.

According to the applicant's chronological statement of medical treatment, submitted in support of her request, she continued to seek medical treatment and relief for left back and hip pain following her release from active duty.

Army Regulation 635-40 states that commanders of medical treatment facilities who are treating soldiers in an assigned, attached, or outpatient status may initiate action to evaluate the soldier's physical ability to perform the duties of his or her office, grade, rank, or rating.  Additionally, unit commander's who believe that a soldier in his or her command is unable to perform the duties of his or her office, grade, rank or rating because of physical disability, may also refer a soldier to the responsible medical treatment facility for evaluation.

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 disability rated at least 30 percent.

Army Regulation 635-40 also states that often a soldier may be found unfit for any variety of diagnosed conditions, which are rated essentially for pain.  Inasmuch as there are no objective medical laboratory testing procedures used to detect the existence of or measure the intensity of subjective complaints of pain, a disability retirement cannot be awarded solely on the basis of pain.

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 disability rated at less than 30 percent.  With the exception of soldiers with less than 6 months of active Federal service, soldiers with disability rating of less than 30 percent receive disability severance pay.  Soldiers with less than 6 months of active Federal service are not entitled to severance pay.

Title 38, United States Code, sections 310 and 331, permits the Department of Veterans Affairs to award compensation for disabilities which were incurred in or aggravated by active military service.  The Department of Veterans Affairs, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's employability.  

Army Regulation 635-200, Chapter 11, provides for the administrative separation of soldiers in an entry-level status who cannot meet the minimum standards prescribed for successful completion of training.  The soldier is required to be notified of the proposed separation and is entitled to consult counsel and submit statement in his or her own behalf.  The service of soldiers separated under this chapter will be uncharacterized.

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.  In the absence of evidence to contrary the Board presumes that the applicant's administrative separation was accomplished in accordance with established policies and provisions of law and regulation.  

2.  Although the applicant maintains that she was separated from active duty because of a medical condition, the Board notes that neither her commander, nor any of her attending physicians ever recommended that she be referred for disability processing.  

3.  Rather, the Board notes that the applicant accepted the administrative separation "for speed of exit."  She cannot now, because of continued medical treatment, medical expenses, or receipt of a Department of Veterans Affairs disability rating, conclude that she should have chosen a different course of action.

4.  The rating action by the Department of Veterans Affairs does not necessarily demonstrate any error or injustice in the Army separation action.  The Department of Veterans Affairs, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Any rating action by the Department of Veterans Affairs does not compel the Army to modify its rating.

5.  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 this requirement.

6.  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

__MHM__  __CLG__  __RJW__  DENY APPLICATION

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

INDEX

CASE ID	AR2002077448	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030204	
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.	108.00	
2.		
3.		
4.		
5.		
6.