RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 November 2007
	DOCKET NUMBER:  AR20070008776 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Ms. Carmen Duncan

Member

Mr. Qawiy A. Sabree

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, in effect, change of his honorable discharge to a medical discharge.

2.  The applicant states that he did not receive any compensation for injuries he incurred while on active duty.  He was not aware that he should have been receiving compensation.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); a written statement; Headquarters, 99th Regional Readiness Command Orders 05-028-0003; DD Form 2807 (Report of Medical History); letters from his state representatives; a letter from the Governor of the State of West Virginia; a Radiology Report dated 8 August 2006; and a VA Form 21-526 (Department of Veterans Affairs Application for Compensation and/or Pension).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records show that he entered active duty on  
17 January 1997.  He completed the necessary training and was awarded the military occupational specialty (MOS) 92G (Food Service Specialist).

3.  His military service records show that he received two general counseling statements from his chain of command for failure to successfully pass two record Army Physical Fitness Tests (APFTs) and to maintain his fitness, which demonstrates a lack of drive, poor physical shape, lack of motivation, and no self-discipline.  The applicant failed his APFT on 22 April 1998 and 22 August 1998.  During both events he failed to achieve a passing score (of 60 points) for the push-up and the 2 mile run.
4.  On 2 November 1998, the applicant's commander initiated a Bar to Reenlistment.  On 17 November 1998, the Bar to Reenlistment was approved.  The applicant did not submit a statement in his own behalf and he did not appeal the Bar to Reenlistment.

5.  On 1 December 1998, the applicant's commander recommended the applicant for separation under the provision of Army Regulation 635-200 (Personnel Separation), chapter 13, paragraph 13-2 for unsatisfactory performance, failure of two consecutive record APFTs.  In the commander's recommendation, it was stated that the applicant participated in a special population physical training and that his APFT failures were not due to a medical problem, but his failure was due to his physical inability.

6.  On 1 December 1998, a memorandum from U.S. Army Trial Defense Services stated that the applicant was not counseled on his administrative separation to allow further inquiry into the appropriate manner of separation.  It further states "We should not (as AR 635-200, para 1-35a recognizes) unfairly stigmatize a Soldier's performance as 'unsatisfactory' when he can't perform to standards due to a medical condition."

7.  On 2 December 1998, a memorandum from the applicant's commander stated that the applicant consulted with Trial Defense Counsel regarding chapter proceedings and he was appraised of his rights.  It stated that the Trail Defense Counsel made the decision not to sign the applicant's chapter paperwork because he did not feel the applicant received the proper chapter physical.  It further stated that the applicant did in fact receive the proper chapter physical conducted by the appropriate medical personnel as prescribed by regulations.  There is no legal, moral or ethical reason for the Trial Defense Counsel to refuse to sign the chapter paperwork.  The commander consulted with Division Artillery Trial Counsel and he was advised to submit the memorandum in lieu of the Trial Defense Counsel signature.

8.  The applicant's military service records do not contain a copy of his medical records.  Also, it does not contain a copy of a Medical Evaluation Board (MEBD) or Physical Evaluation Board (PEB) proceedings.

9.  On 2 December 1998, the approving authority approved the request for separation and directed the applicant's service be characterized as honorable and that he be transferred to the Individual Ready Reserve (IRR) to complete his statutory service obligation.

10.  The DD Form 214 he was issued shows that he was honorably released from active duty for unsatisfactory performance on 22 January 1999.  He had completed 2 years and 6 days of active service.

11.  In his written statement the applicant states, in effect, that after he found out about his medical problems he was told his medical records were lost.  He spent most of his active duty time with Service Battery, 3rd Battalion, 82nd Field Artillery, 1st Cavalry Division, at Fort Hood, Texas.  He was very proud to serve with that honorable division until he hurt his knee during a training exercise.  It was after he injured his knee he found himself having a lot of problems and started putting on excess body weight due to a lack of exercise.  After gaining the weight and failing the APFT (2 mile run) he realized that he might be separated from the Army.  During his separation examination he was told that the extreme pain and swelling in both knees came from torn cartilage.  He thought that since there was a reason for the pain in his knee and weight gain he would have been placed on remedial training and allowed to finish his military tour.  However, his medical records came up missing two days after his separation examination.

12.  He further states, in effect, that his first sergeant told him it was his fault that his medical records were missing because he was trying to prolong the inevitable.  He continued to complete his out processing and he was separated on 22 January 1999, 11 months before his normal expiration of service.  After his separation he fell into depression, gained weight, and went through a divorce.  In 2003, he enlisted into the Army Reserve and was assigned to the 463rd Engineer Battalion, Wheeling, West Virginia.  In 2004, during a physical examination for deployment in support of Iraqi Freedom, his torn cartilage was discovered, so he was again discharged from the military.  He is now taking medication for depression, sleep deprivation, and pain.  He was informed recently that he should at least receive a partial disability for all the years of pain.  He should receive back pay from January 1999 and have both knees fixed.

13.  The Radiology Report that the applicant submitted shows that a Magnetic Resonance Imaging (MRI) was conducted on 3 June 2005.  The findings of the examination show mild knee joint effusion.  There is a small intrasubstance signal in the posterior horn of the medial meniscus.  This could be a small grade I type tear.  No major tear seen.  The lateral meniscus, anterior and posterior cruciate ligaments, medial and lateral collateral ligaments are intact and show normal signal intensity.  The quadriceps tendon is intact and shows normal signal intensity.  There is no bone contusion or edema.  Impression:  Mild knee joint effusion.  Small intrasubstance signal in the posterior horn of the medial meniscus.  This may be a grade I type tear.  No major tear seen.

14.  The VA Form 21-526 is an application for veterans' compensation and/or pension.  Also, the DD Form 2807 that the applicant submitted shows that he was qualified for retention and had no physical profile limitations.

15.  Army Regulation 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, states in part “initiation of separation proceedings is required for Soldiers without medical limitations who have two consecutive failures of the Army Physical Fitness Test, unless the responsible commander chooses to impose a bar to reenlistment per Army Regulation 601-280 (Total Army Retention Program)."  The regulation requires that separation action will be taken when in the commander’s judgment the individual will not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  Service of Soldiers separated because of unsatisfactory performance under this regulation was characterized as honorable or under honorable conditions.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides, in pertinent part, that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to an MEBD.  Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

17.  Title 38, United States Code, permits the Department of Veterans Affairs (DVA) to award compensation for disabilities which were incurred in or aggravated by active military service.  The DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests, in effect, that his honorable discharge be changed to a medical discharge and he be compensated for the injuries he incurred on active duty.  He also requests back pay from January 1999.

2.  Evidence shows that the applicant was honorably released from active duty for unsatisfactory performance due to failure of two consecutive record APFTs. 

3.  There is no evidence of record and the applicant has not submitted any evidence that he had a medical condition which would have warranted consideration by an MEBD.  Without an MEBD, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or retired for physical unfitness.

4.  The applicant's discharge was accomplished in compliance with applicable regulations and there is no indication of procedural errors or injustice that would tend to jeopardize his rights.  The evidence provides sufficient basis for an honorable discharge for unsatisfactory performance, failure of APFTs.  Therefore, he is not entitled to a medical discharge or back pay from January 1999.

5.  The MRI that the applicant submitted shows a mild knee joint effusion, a small intrasubstance signal in the posterior horn of the medial meniscus which may be a grade I type tear with no major tear seen.  This does not show that the applicant had a medically disqualifying condition while on active duty.

6.  The VA Form 21-526 is an application for veterans' compensation and/or pension; therefore, it should be forwarded to the DVA for processing.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___qas__  ___cd___  ____lds__  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 for correction of the records of the individual concerned.




________Linda D. Simmons______
          CHAIRPERSON




INDEX

CASE ID
AR20070008776
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071114
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.

2.

3.

4.

5.

6.