RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2007
	DOCKET NUMBER:  AR20060012179 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Mr. Gerard W. Schwartz

Acting Director

Mr. Michael J. Fowler

Analyst


The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Mr. Thomas H. Ray

Member

Ms. Rea M. Nuppenau

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of an earlier appeal that her discharge be changed to a medical discharge and that she receive all pay and allowances payable through the expiration of her term of service.

2.  The applicant states, in effect, that she is submitting new documents from the Department of Veterans Affairs (DVA) to support her request.  She further states that if an advisory opinion was used in review of her case that she would like the opportunity to respond to the opinion.

3.  The applicant provides 124 pages of DVA Compensation and Pension documents with dates ranging from 2002 through 2004.

CONSIDERATION OF EVIDENCE:

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 AR20050013919, on 
8 June 2006.

2.  The applicant submitted 124 pages of DVA Compensation and Pension documents.  These documents are new evidence which will be considered.  The documents show that the applicant was medically examined for service connected disabilities and that she received DVA ratings for various conditions.

3.  A Standard Form (SF) 88 (Report of Medical Examination), dated 
8 September 1982, shows that the applicant was qualified for enlistment.  Item 
39 (Identifying body marks, scars, tattoos) shows she indicated "yes" for abnormalities [large scar right Achilles tendon].  Item 74 (Summary of Defects and Diagnoses) shows healed right Achilles tendon laceration.

4.  An SF 89 (Report of Medical History), dated 8 September 1982, shows that the applicant was enlisting and that she stated "I am good health."  Item 18 (Have you ever had, or have been advised to have, any operations?) shows that she indicated "Cut tendon in back of right ankle."  A military medical physician cleared the applicant for entry.

5.  The applicant enlisted in the Regular Army on 10 September 1982 and did not successfully complete basic training.



6.  Two SFs 600 (Chronological Record of Medical Care), with dates 
20 September 1982 through 28 September 1982 and 29 September 1982 through 4 October 1982 shows that during the above periods the applicant's Achilles tendon scar was breaking down.  Her scar was cleaned and dressed and she was referred to the surgical clinic for treatment.  

7.  A DA Form 3349 (Physical Profile Board Proceedings), dated 29 September 1982, shows the applicant was issued a temporary profile for "Pain in ankle [existed prior to service (EPTS) scar breaking down]" which expired on 5 October 1982.  The assignment limitations imposed by the physical profile precluded participation in crawling, stooping, running, marching, jumping, standing for long periods, mandatory strenuous physical activity, and physical training, and she was to wear open shoes.  

8.  An undated DA Form 3349 shows the applicant was issued a temporary profile for "Open wound, overlaying the right Achilles tendon" which remained in effect until completion of a medical board.  The assignment limitations imposed by the physical profile precluded participation in crawling, stooping, running, prolonged standing or marching, mandatory strenuous physical activity, and wearing of combat boots.

9.  On 4 October 1982, an Entrance Physical Standards Board (EPSBD) Proceeding convened at the U.S. Army, Medical Department Activities (MEDDAC), Fort McClellan, Alabama, to evaluate the applicant.  The EPSBD Proceedings (DA Form 4707) noted "Pain in my right ankle."  The EPSBD found the applicant met retention standards; however, it also contained a recommendation that the applicant not be retained in service based on her diagnosed open draining wound overlying the right Achilles tendon [Status post surgical repair of right Achilles tendon].  The medical approving authority approved the findings and recommendations of the EPSBD on 21 October 1982. 

10.  On 25 October 1982, the applicant concurred with the EPSBD Proceedings and requested to be discharged from the Army without delay in Item 21 (Action by Service Member) of the DA Form 4707.  This portion of the EPSBD Proceedings also provided the applicant the opportunity to concur with the proceedings and request retention on active duty; to disagree with the proceedings because her condition did not exist prior to service; or to disagree with the proceedings because her condition was not disqualifying on entry and was aggravated by service.  She indicated that she agreed with the findings.

11.  The unit commander recommended that the applicant be separated based on the EPSBD results by signing Item 25 (Action by Unit Commander) of the DA Form 4707.  On 16 October 1982, the separation authority approved the applicant’s separation by signing Item 29 (Action by Discharge Authority) of the DA Form 4707.  

12.  On 29 October 1982, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 5-11, by reason of not meeting procurement medical fitness standards – no disability.  She had completed a total of 1 month and 20 days of creditable active service.  Her character of service was listed as uncharacterized.

13.  The applicant provided a 32-page DVA Rating Decision, dated 
13 September 2002, that shows her disability claim was disapproved for service connected post-traumatic stress disorder (PTSD) and residuals; and injury, right Achilles tendon, status/post surgical repair.

14.  On 31 March 2003, the DVA received the applicant's request to reopen her claim for service-connection on her two previously denied issues.

15.  The applicant provided a DVA Compensation and Pension Exam Report, dated 26 August 2003, that shows she mentioned experiencing several devastating events during basic training.  She stated her unit was hosed down with a fire hose and forced to march to the point where her previously-injured right ankle developed open sores.  She continued that her unit was ordered to climb into, or pile into, a garbage dumpster.  She found these incidents to be humiliating and frightening.  She further stated that on more than one occasion supervisors made unwanted advances towards her.

16.  The applicant provided a 53-page DVA Rating Decision, dated 
24 September 2003, that shows she was rated as 30 percent for PTSD with associated major depression and 10 percent for residuals, injury, right Achilles tendon, status/post surgical repair with a combined evaluation of 40 percent.

17.  The applicant provided a 39-page DVA Rating Decision, dated 12 March 2004, that shows she was rated as 70 percent for PTSD with associated major depression (an increase from 30 percent) and 10 percent for tender scar, right, Achilles tendon associated with residuals, injury, right Achilles tendon, status/post surgical repair for service connected injuries with a combined evaluation of 80 percent.

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-11 of that regulation provides, in pertinent part, that a Regular Army member may be separated for not meeting medical procurement standards if the condition is identified by appropriate medical authorities within 6 months of the Soldier’s initial entrance on active duty.  The appropriate characterization of service for Soldiers separated under these provisions within their first 180 days of active duty is uncharacterized.

19.  Army Regulation 40-501, chapter 2 covers physical standards for enlistment, appointment, and induction.  Paragraph 2-32s, Skin and cellular tissues,  provides that scars that are so extensive, deep, or adherent that they may interfere with the wearing of military clothing or equipment, exhibit a tendency to ulcerate, or interfere with function are causes for rejection for appointment, enlistment, and induction. 

20. Army Regulation 635-40 governs physical fitness evaluation of Soldiers who may be unfit to perform their military duties because of physical disability.  Paragraph 3-3a(1) states that according to accepted medical principles, certain abnormalities and residual conditions to include scars exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service.

21.  Title 38, United States Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The DVA, 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 civilian employability.

22.  An advisory opinion was not used in the original consideration of this case.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her discharge should be changed to a medical discharge and that she should receive all pay and allowances payable through the expiration of her term of service.  It is noted that these two requests are mutually exclusive.

2.  She provided DVA Compensation and Pension documents that she was approved for a combined evaluation of 80 percent for PTSD and tender scar, right, Achilles tendon associated with residuals, injury, right Achilles tendon, status/post surgical repair.  However, evidence of record shows that competent Army physicians examined her and found that she did not meet medical fitness standards for enlistment.  The applicant agreed with these findings and the proposed action for administrative separation from the Army.  
3.  Unfortunately, the applicant raised the contention that maltreatment by her drill sergeant led to the re-injuring of her Achilles tendon scar more than 20 years ago after she separated.  There is no evidence of maltreatment in her records, and the applicant has not provided evidence that shows drill sergeant maltreatment.
 
4.  The applicant had an opportunity to disagree with the finding that her right Achilles tendon condition was EPTS.  She also had an opportunity to disagree with the findings that, while her condition was EPTS, it was not disqualifying on entry and was aggravated by service.  She failed to disagree with those two findings.

5.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JTM __  __THR __  ___RMN_  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 to amend the decision of the ABCMR set forth in Docket Number AR20050013919, dated 8 June 2006.




_____John T. Meixell         _
          CHAIRPERSON




INDEX

CASE ID
AR20060012179
SUFFIX

RECON
8 JUNE 2006
DATE BOARDED
17 APRIL 2007
TYPE OF DISCHARGE
UNCHAR
DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MR. SCHWARTZ
ISSUES         1.
144.9321.0000
2.

3.

4.

5.

6.