MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 18 APRIL 2002
         DOCKET NUMBER: AR2001065264

         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Barbara J. Ellis		Member
Mr. Ronald E. Blakely		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: In effect, physical disability retirement or separation.

APPLICANT STATES: That she injured and reinjured her neck, back, and right shoulder. She was injured during training in 1999 and was erroneously discharged. She requests that she be treated and fully compensated from the date of her injury until the present time due to her injury being aggravated in 2001. She is in physical pain and needs medical treatment.

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

The applicant enlisted in the Army for four years on 10 February 1999 and was assigned to Fort Leonard Wood, Missouri, for training.

The medical documents that the applicant submits with her request show that she was treated on numerous occasions and underwent physical therapy, in February and March 1999, for her various ailments, mostly for right shoulder pain. The last treatment was on 18 March 1999.

On 7 March 1999 the applicant was counseled for missing training. On 20 March and 29 March 1999 she was counseled for refusing to train. On the latter date she stated to an NCO that she was not training with the platoon and that she wanted to leave. She was counseled again on 8 April 1999. That counseling indicated that although she had a profile, she was cleared for training, but she stated that she was not concerned with missed training and had no desire to complete basic training. Her commanding officer informed her that he was requesting that she receive an entry level separation.

On 12 April 1999 the applicant’s commanding officer notified the applicant that he was initiating action to separate her from the Army for sociological reasons. He stated that she was sociologically unfit, and lacked the self-discipline and desire needed to complete basic training. He stated that she had refused to train.

The applicant acknowledged notification of the proposed separation action and stated that she understood that if the action was approved she would receive an entry level separation with an uncharacterized character of service. She stated that she had been afforded the opportunity to consult with counsel, and that she declined that opportunity. She stated that she had been advised of her rights. She waived her rights.

The applicant’s commanding officer recommended to the separation authority that the applicant be separated from the Army under the provisions of Army Regulation 635-200, chapter 11. On 14 April 1999, the separation authority approved the recommendation. The applicant was discharged on 16 April 1999 because of entry level performance and conduct. She had 2 months and 7 days of service.
The applicant again enlisted in the Army on 18 July 2001. Entrance Physical Standards Board (EPSBD) Proceedings of 14 September 2001 indicate that she obtained a waiver for her neck pain and reenlisted in the Army. Those proceedings provide a history of the applicant’s neck and right shoulder pain that she experienced in 1999, and indicate that she had been seen by her family physician upon her return to her home and was diagnosed with a chronic cervical muscle strain and right carpal tunnel syndrome. She was treated for her ailments. The proceedings indicate that she stated that her neck pain and right shoulder pain had increased since her enlistment, and were exacerbated by any type of lifting, with any weight placed upon her right shoulder, and with wearing a Kevlar helmet. The proceedings indicate that the applicant denied any reinjury or trauma to her neck or right shoulder since the start of training and that her symptoms were localized to her neck and right shoulder area with occasional radiation from her right hand up her arm to the back of her head, causing chronic headaches. She stated that her symptoms have persisted despite treatment. The proceedings indicate that the applicant underwent a physical examination and radiographic tests. Her condition was assessed as chronic right neck and shoulder pain consistent with myofascial pain syndrome that was symptomatic and existed prior to service. The board found that she was medically unfit for enlistment and that her conditions existed prior to service. The board recommended that she be separated from the Army. The findings were approved. The applicant concurred with the proceedings and stated that she requested to be discharged from the Army without delay. On 17 October 2001 the separation authority directed that the applicant be discharged.

The applicant was discharged on 19 October 2001 under the provisions of Army Regulation 635-200, paragraph 5-11 for failure to meet medical/physical procurement standards. Her character of service was uncharacterized. She had 3 months and 2 days of service.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 11 of that regulation provides for the separation of personnel in an entry level status for unsatisfactory performance or conduct as evidenced by inability, lack of reasonable effort or a failure to adapt to the military
environment. These provisions apply only to individuals whose separation processing is started within 180 days of entry into active duty. An uncharacterized separation is mandatory under this chapter. Separation will
be accomplished within 3 duty days following approval by the separation authority.

Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel from active duty. Paragraph 5-11 provides for the early separation (within the first six months) of those individuals who were not qualified under procurement medical standards, who manifested symptoms of medical problems that would have made them not qualified under procurement medical standards or who became not qualified prior to entry. Although a soldier in such circumstance has a right to request retention, an individual has no right to be
retained. The retention or separation decision is within the cognizance of the appropriate discharge authority. Except in certain extraordinary cases,
uncharacterized entry level separation is mandatory for all individuals who are in an entry level status (within the first 180 of active duty) at the time separation
processing is commenced.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of her office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 635-40 provides 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 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. The applicant’s ailments notwithstanding, there is no evidence, nor has the applicant submitted any, to show that her conditions were incurred or aggravated while on active duty, or that those conditions prevented her satisfactory performance of duty. The applicant was separated in 1999 because of her unsatisfactory performance and conduct during basic training. She did not contest the separation action and had indicated prior to her separation that she had no desire to complete training.

2. In 2001 the applicant concurred with the findings of the EPSBD proceedings which determined that her right neck and shoulder pain existed prior to her military service. She stated that she wanted to be discharged without delay.

3. The applicant did not have any medically unfitting disability which required physical disability processing. Therefore, there is no basis for physical disability retirement or separation.

4. The applicant has submitted neither probative evidence nor a convincing argument in support of her request.

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 that 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

__FNE __ __BJE _ __REB__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001065264
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020418
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.	177
3.
4.
5.
6.