IN THE CASE OF:	  

		BOARD DATE:	  17 September 2008

		DOCKET NUMBER:  AR20080010914 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that her discharge be changed to a medical retirement.

2.  The applicant states, in effect, she was diagnosed with right and left knee stress fractures of the tibia with chrondromalacia of the right and left knees.  She also states that her disability prevents her from standing for long periods and from finding gainful employment and that she has been determined to be 
40 percent disabled. 

3.  The applicant provides a copy of her Department of Veterans Affairs (VA), St. Petersburg, Florida’s Regional Office, Rating Decision, dated 29 September 1998 in support of this application.

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 DD Form 214 shows that she enlisted in the Regular Army on
3 October 2002.  She was not awarded a military occupational specialty (MOS) The highest rank she attained while serving on active duty was Specialist (E-4).

3.  The applicant’s record contains a Fitness Training Company, 120th Adjutant General Battalion (Reception), Fort Jackson, North Carolina, Memorandum for Record, dated 5 May 2003, that shows the applicant had been in the Physical Therapy and Rehabilitation Program since 10 January 2003 because of a tibia stress fracture sustained in basic training.  The applicant’s commander indicated that he had reviewed the applicant’s medical record and spoke with the physical therapist at length about the applicant’s injury and future potential.  The applicant had been discharged from the physical therapy program and her condition did not require additional medical care nor did it warrant a medical board.  

4.  On 16 May 2003, the company commander notified the applicant that he was initiating action to discharge the applicant under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 5-17, Other Designated Physical or Mental Conditions.  The commander stated that the applicant had been treated extensively for tibia stress fractures, however prognosis and recovery time would unreasonably interfere with her ability to successfully ship to training.  The commander recommended that the applicant’s service be characterized as honorable or under honorable conditions.

5.  On the same day, the applicant acknowledged receipt of the proposed action against her and she indicated that she did not desire to consult with legal counsel.  The applicant was also advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to her, and the effect of any action taken by her in waiving his rights.  The applicant waived her rights to have her case considered by an administrative separation board, and declined to submit statements in her own behalf.

6.  On 21 May 2003, the appropriate authority approved the applicant’s expeditious discharge, recommended that the applicant not be transferred to the Individual Ready Reserve (IRR) and that she be issued a honorable discharge.

7.  On 30 May 2003, the applicant was honorably discharged from active duty in accordance with the provisions of Army Regulation 635-200, Chapter 5-17, for completion of required active service.  She was credited with completing 
7 months and 28 days of active duty service.  

8.  The applicant submitted a copy of her VA Rating Decision, dated 
28 July 2006 that shows she received a 40 percent service-connected disability rating for right and left knee stress fractures of the tibia with chrondromalacia of the right and left knees.

9.  Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in AR 40-501.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

10.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-17 provides that a soldier may be separated for other physical or mental conditions not amounting to a disability under Army Regulation 635-40, that interferes with assignment to or performance of duty.  The regulation requires that the condition interferes with the soldiers’ ability to perform duty, and requires that the diagnosis be so severe that the soldier’s ability to function in the military environment is significantly impaired.  Army policy states that the service of personnel separated under this paragraph will be characterized as honorable, general, under honorable conditions, or uncharacterized if in entry-level status.  A general, under honorable conditions discharge is normally inappropriate for individuals separated under the provisions of Chapter 5-17.  

11.  Title 10, United States Code, Chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of a disability incurred while entitled to basic pay.  Sections 310 and 331, permits the DVA to award compensation for a medical condition which was 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’s contention that her VA rating decision supports a medical retirement was carefully considered.  However, these documents are insufficient to provide a basis to grant the requested relief.

2.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.  The VA operates under its own policies and regulations and provides compensation when a medical condition is determined to be service-connected.  Furthermore, the VA can evaluate a veteran over his or her lifetime, adjusting the percentage of disability based upon the agency’s examinations and findings.  

3.  The available evidence shows the applicant was medically cleared for separation.  There is no evidence in the record and the applicant failed to provide evidence that shows she had a medical condition which would have warranted consideration by a Medical Evaluation Board (MEB) or a Physical Disabilities Board (PEB).  Without a PEB, the applicant could not have been issued a medical discharge.

4.  In order to justify correction of a military record the applicant must, 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

_______  _________  ________   PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X___ _    ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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.



      _______ _   _X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080010914



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ABCMR Record of Proceedings (cont)                                         AR20080010914



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