MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 19 March 2002
         DOCKET NUMBER: AR2001065188

         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
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Ms. Shirley L. Powell		Chairperson
Mr. Stanley Kelley		Member
Mr. Elzey J. Arledge, Jr.		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)

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APPLICANT REQUESTS: That her administrative discharge be changed to a medical discharge.

APPLICANT STATES: That she could not pass the run portion of the Army Physical Fitness Test (APFT) due to an injury she sustained on active duty. The Army doctor recommended she get a medical discharge; however, she was chaptered out unjustly. The Department of Veterans Affairs (VA) awarded her a 10 percent service-connected disability rating less than 2 months after her discharge. She provides her Certificate of Release or Discharge from Active Duty, DD Form 214, and her VA Rating Decision as supporting evidence.

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

She enlisted in the Regular Army on 6 July 2000.

On 14 August 2000, the applicant developed right leg pain while running and marching. She was later diagnosed with a right proximal medial tibia small mild stress fracture.

The applicant was counseled on 12, 20, and 26 February and 12 March 2001 for failing the run portion of the APFT.

On 27 March 2001, the applicant was examined by the Physical Therapy Clinic. The physical therapist annotated the Chronological Record of Medical Care, SF 600, “recommend med board vs chapter – will discuss with unit.”

On or about 5 April 2001, the applicant underwent a bone scan for a complaint of chronic right metatarsophalangeal (pertaining to the metatarsus and the phalanges of the toes) pain . The bone scan revealed no significant knee lesions but did reveal a small focal lesion at the right proximal 1/3 medial tibia consistent with small mild stress fracture.

On 11 April 2001, the applicant was examined by the Physical Therapy Clinic. The same physical therapist who examined her on 27 March 2001 annotated the SF 600, “take PT test, believe soldier is safe to take one APFT. Soldier instructed to RTC (return to clinic) if unable to pass PT test…”

The applicant was counseled on 16, 24, and 30 April and 7 May 2001 for failing the run portion of the APFT.

On 25 May 2001, the applicant’s commander initiated action to separate her under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance. The reason cited for the recommendation was the applicant’s failing the APFT on numerous occasions and lack of improvement in the events she was deficient in.
On 25 May 2001, the applicant was advised by consulting counsel of the basis for the proposed separation, waived consulting counsel, and elected not to submit a statement in her own behalf.

On 29 May 2001, the appropriate authority approved the recommendation and directed the soldier be issued an honorable discharge.

On 4 June 2001, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 13, unsatisfactory performance. She had completed 10 months and 29 days of creditable active service and had no lost time.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 of that regulation provides, in pertinent part, that a member may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. Commanders will separate a soldier for unsatisfactory performance when it is clearly established that, in the commander’s judgment, the soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier and the soldier meets retention medical standards.

On 17 August 2001, the VA awarded the applicant a 10 percent disability rating for a small focal lesion at the right proximal 1/3 medial tibia consistent with small mild stress fracture.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The regulation defines “physically unfit” as unfitness due to physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. Paragraph 3-1d states that an inability to meet established physical standards will not serve as the sole basis for a finding of unfitness. Paragraph 4-9 states that the medical treatment facility commander will conduct an examination of a soldier referred for evaluation. If it appears the soldier is not medically qualified to perform duty, the medical treatment facility commander will refer the soldier to a medical evaluation board (MEB).

Army Regulation 40-501 governs the medical fitness standards for enlistment, retention, and separation. Chapter 3 governs retention standards. Paragraphs 3-13 (lower extremities) and 3-14 (miscellaneous conditions of the extremities) do not list stress fractures as a cause for referral to an MEB.

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The VA Schedule of Rating Disabilities (VASRD) is the standard under which percentage rating decisions are to be made for disabled military personnel. The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Unlike the VA, the Army must first determine whether or not a soldier is fit to reasonably perform the duties of his office, grade, rank or rating. Once a soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.

Title 38, U. S. Code, sections 310 and 331, permits 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.

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 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.

2. The Board acknowledges that on 27 March 2001 the applicant’s physical therapist indicated he would recommend a medical board. However, on 11 April 2001, after the applicant had undergone a bone scan, that same physical therapist believed it was safe for her to take an APFT. There is no later mention that she did not meet medical retention standards.

3. The rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved (i.e., the more stringent standard by which a soldier is determined not to be medically fit for duty versus the standard by which a civilian would be determined to be socially or industrially impaired), an individual’s medical condition may be rated by the VA as disabling and yet the Army found the individual not to be medically unfit.

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

__slp___ ___sk___ __eja___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001065188
SUFFIX
RECON
DATE BOARDED	20020319
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.