IN THE CASE OF:	  

		BOARD DATE:	       16 December 2008

		DOCKET NUMBER:  AR20080015102 


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, a medical discharge. 

2.  The applicant states that he was discharged due to an injury incurred in the line of duty.  He contends that he was injured during Officer Candidate School (OCS).  Since he was in initial entry training, he was not afforded medical care that a prior-service person could get and he was forced out of the Army.  He was discharged because he could not complete the course due to injuries to his leg and shoulder.

3.  The applicant provided under separate cover the following:

	a.  A 5 September 2008 letter to the Chief, Congressional and Special Actions, Army Review Boards Agency;

	b.  Two DA Forms 4856 (Developmental Counseling Form) – these forms are incomplete and contain no Part I, Administrative Data, but reference relief from OCS for medical reasons; and

	c.  Pages 8-31 of a Department of Veterans Affairs VISTA Electronic Medical Documentation Form dated 27 August 2008 and printed on 4 September 2008.

	d.  Pages 1-138 of a Department of Veterans Affairs VISTA Electronic Medical Documentation Form printed on 11 August 2008.

	e.  Various pages of Consult Requests, Progress Notes, and Radiology Reports from Department of Veterans Affairs VISTA Electronic Medical Documentation Forms printed on various dates from 10 April 2008 through 11 August 2008.

	f.  Army Regulation 350-51 (United States Army Officer Candidate School).

	g.  Department of Veterans Affairs claims decision, dated 6 March 2008.

	h.  Service medical records from 24 July 2006 through 16 January 2007.

CONSIDERATION OF EVIDENCE:

1.  All the specific facts and circumstances leading to the applicant's discharge were not contained in the official record.  A decision is being made based on the available documentation detailed below.  The available evidence of record shows that on 19 July 2006, the applicant enlisted in the Regular Army for the U.S. Army Officer/Warrant Officer Enlistment Program and the U.S. Army Incentive Enlistment Program (U.S. Army Loan Repayment Program).

2.  The applicant's service medical records show that upon starting basic training he complained of left shoulder pain.  The left clavicle was tender on palpation and there was mild crepitus.  He was treated with anti-inflammatory drugs and cold treatments.  A magnetic resonance imaging (MRI) revealed compression arthralgia of the acromio-clavicular joint most likely due to prior repetitive trauma.

3.  After arriving at Fort Benning, GA to begin OCS, the applicant complained of left knee pain occurring with no specific injury to the knee.  On 30 October 2006, he was placed on a temporary profile until 29 November 2006.  On 14 November 2006, he was placed on a temporary profile until 31 December 2006.

4.  On 11 December 2006, the applicant voluntarily requested discharge in accordance with the OCS Commandant's policy and under the provisions of Army Regulation 350-51 (U.S. Army OCS) because he could not complete training.  He was injured during training and could not complete training due to his injuries.  He was placed on profile and recovery time of 30 or more days which was the cause of relief from the program.

5.  On 11 January 2007, the separation authority approved the applicant's discharge.  On 19 January 2007, the applicant was honorably discharged under 

the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 7, section III, by reason of defective enlistment agreement.  He was credited with 6 months and 1 day of active duty service.

6.  The applicant provided medical evidence showing that he underwent surgery on his left knee and left shoulder in August 2008 at the Southern Arizona Veteran's Administration Hospital Center.

7.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 7-16 stipulates, in pertinent part, that a defective enlistment agreement exists when the Soldier is eligible for enlistment in the Army but does not meet the prerequisites for the option for which enlisted.  This situation exists when the following occurs:  (a) a material misrepresentation by recruiting personnel, upon which the Soldier reasonably relied, resulting in the Soldier being induced to enlist for that option; (b) an administrative oversight or error on the part of the recruiting personnel, in which the Soldier did not knowingly take part, in failing to detect that the Soldier did not meet all the requirements for the enlistment commitment; (c)  action when discovered during processing or training; or (c) unfulfilled enlistment commitment. An unfulfilled enlistment commitment exists when the Soldier receives a written enlistment commitment from recruiting personnel for which the Soldier is qualified but which cannot be fulfilled by the Army through no fault of the Soldier.

8.  Army Regulation 350-51 prescribes eligibility requirements and procedures for processing applications of Active Army personnel for OCS and for Army Band OCS.  Paragraph 5-12 stipulates, in pertinent part, that the school commandant may hold over for a later class candidates whose records show that they may reasonably be expected to overcome their deficiencies by joining a later class.  Candidates who miss or cannot actively participate in a significant amount of training for 14 or more days of instruction due to medical reasons may be relieved or turned back to a later class.  At the discretion of the commander, these students may be assigned to a later class after meeting the medical standards.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, U.S. Code, chapter 61, and Department of Defense Directive 1332.18.  It 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 or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

10.  Paragraph 3-1 of Army Regulation 635-40 provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.

11.  The objectives of the Army PDES are to maintain an effective and fit military organization with maximum use of available manpower, provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability, and provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected.  Soldiers are referred into the PDES system when they no longer meet medical retention standards in accordance with chapter 3, Army Regulation 40-501, as evidenced in a medical evaluation board (MEB); receive a permanent medical profile and are referred by an MOS/Medical Retention Board; are command-referred for a fitness for duty medical examination; or are referred by the Commander, U.S. Army Human Resources Command.  A service member is referred to an MEB by a unit commander or a physician when it is believed that he/she may possesses one or more medical conditions that cause him/her to fail to meet retention standards.  A service member does not "apply" or self-refer for evaluation by an MEB.

	a.  Soldiers enter the PDES under the presumption they are physically fit. This is known as the Presumption of Fitness Rule which states a Soldier is presumed fit because of continued performance of military duty up to the point of separation for reasons other than physical disability.  The philosophy behind the rule is that military disability compensation is for career interruption, compensation for service-incurred conditions.

	b.  Application of the Presumption of Fitness Rule does not mandate a finding of unfit.  The presumption is overcome if the preponderance of evidence establishes the Soldier, because of disability, was physically unable to perform adequately the duties of his/her office, grade, rank, or rating.  This circumstance is aimed at long-term conditions.  It may also be overcome if acute, grave illness or injury, or other deterioration of the Soldier's physical condition occurred immediately prior to, or coincident with, processing for separation or retirement for reasons other than physical disability which rendered the Soldier unfit for further duty.  Future duty is a factor in this circumstance.


	c.  Once an MEB determines the Soldier fails medical retention standards, the Soldier is referred to the Physical Evaluation Board (PEB).  The PEB is required by law to determine the physical disability rating using the Veterans Schedule for Rating Disabilities (VASRD).  Three factors determine disability disposition:  the rating percentage, the stability of the disabling condition, and total years of active Federal service.  For service-incurred or aggravated conditions not involving misconduct, the dispositions are:  (1) permanent disability retirement occurs if the condition is permanent and stable and rated at a minimum of 30 percent or the Soldier has 20 years of active Federal service; and (2) temporary disability retirement occurs if the Soldier is entitled to permanent disability retirement except that the disability is not stable for rating purposes.  However, stability does not include latent impairment, which is what might happen in the future.  If placed on the TDRL, the Soldier is required to undergo a periodic medical reexamination within 18 months, followed by another PEB evaluation.  The Soldier may be retained on the TDRL or final determination made.  While the law provides for a maximum tenure on the TDRL of 5 years, there is no entitlement to be retained for the entire period.

	d.  The PEB initially conducts an informal adjudication.  This is a records review of the MEB and applicable personnel documents without the Soldier present.  The informal decision is forwarded to the PEB liaison officer for counseling of the Soldier.  If after counseling the Soldier concurs with the findings, the case is forwarded to the U.S. Army Physical Disability Agency to accomplish disposition.  If the Soldier disagrees with the findings, he/she has the right to submit a rebuttal for reconsideration and the right to elect a formal hearing.  At the time of election for a formal hearing, the Soldier may also elect to appear or not appear, and to be represented by the regularly appointed military counsel or to have counsel of his choice at no expense to the government.  He/she may also request essential witnesses to testify in his/her behalf.

DISCUSSION AND CONCLUSIONS:

1.  In order to meet the requirements for a medical discharge, the applicant must show that he was unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  The available evidence shows that the applicant started basic training with shoulder problems, reported left knee pain while in OCS.  He was placed on temporary profile and his recovery was expected to take more than 30 days.


2.  Because the applicant's medical problems required a recovery time of greater than 30 days and occurred through no fault of his own, he qualified for voluntary separation under the unfulfilled enlistment provision of Army Regulation 635-200, paragraph 7-16.  There was no finding that he was physically unfit at the time he made his voluntary request for discharge.  He was still on temporary profile at the time of his separation and a final medical determination had not been made in his case.  It also appears that the OCS Commandant had not made any determination in his case prior to his voluntary request.

3.  The applicant voluntarily requested discharge because he could not finish OCS training.  In accordance with the applicant's request, he was properly discharged in accordance with Army regulations because of defective enlistment agreement.  There is no available evidence showing he did not receive proper medical care for his injuries.  Given the foregoing, there is no basis upon which to grant the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X____  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.


																XXX
      __________________________
                 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)                                         AR20080015102



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ABCMR Record of Proceedings (cont)                                         AR20080015102



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