IN THE CASE OF:	  

		BOARD DATE: 	       25 June 2009

		DOCKET NUMBER:  AR20080017903 


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 correction of her records to show she was medically retired instead of honorably discharged for disability with entitlement to severance pay.

2.  The applicant states, "See 1 in Addendum"; however, she did not submit an addendum or explain what the addendum contains.

3.  The applicant provides a copy of her DD Form 2808 (Report of Medical Examination), dated 18 April 2003; a copy of her DD Form 2807-1 (Report of Medical History), dated 18 April 2003; and a copy of her USMEPCOM 
Form 40-1-3-R-E (Report of Medical Examination/Treatment-Visual Acuity), dated 14 April 2003, in support of her request.

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 records show she initially enlisted in the U.S. Army Reserve on 18 April 2003 and was subsequently ordered to active duty for training on 18 June 2003.  She completed basic combat training at Fort Jackson, SC, and proceeded to Fort Sam Houston, TX, on or around 29 August 2003 for completion of advanced individual training for military occupational specialty 91V (Respiratory Specialist).

3.  The applicant’s DA Form 2173 (Statement of Medical Examination and Duty Status) shows that while conducting the final road march during basic combat training, she began to feel a sharp pain in her hip at the conclusion of the road march.  She was initially prescribed pain medications.

4.  On 12 January 2004, the applicant underwent a physical examination at Brooke Army Medical Center after she complained of bilateral hip and leg pain.  Her narrative summary shows she was diagnosed with right femoral neck stress fracture, left femoral neck stress fracture, left diaphyseal stress fracture, left foot bunion (medically acceptable), and cystic acne (medically acceptable).  Based on this diagnosis and limitations, the attending physician recommended her referral to the Physical Disability Evaluation System (PDES).

5.  On 8 February 2004, a medical evaluation board (MEBD) convened at Brooke Army Medical Center, Fort Sam Houston, TX, and after consideration of clinical records, laboratory findings, and physical examinations, the MEBD found that the applicant’s medical condition of right femoral neck stress fracture, left femoral neck stress fracture, left diaphyseal stress fracture, left foot bunion (medically acceptable), and cystic acne (medically acceptable) did not meet medical retention standards.  The MEBD recommended that she be referred to a physical evaluation board (PEB).  The applicant agreed with the MEBD’s findings and recommendation and indicated that she did desire to continue on active duty.

6.  On 9 March 2004, an informal PEB convened at Fort Sam Houston, TX, and found the applicant's condition prevented her from performing the duties required of her grade and specialty and determined that she was physically unfit due to chronic bilateral hip and leg pain due to femoral stress fractures confirmed by MRI, rated as slight and constant.  The applicant was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) and was granted a 10-percent disability rating for codes 5099 and 5003.  The PEB also considered her other medical conditions (left foot bunion and cystic acne) but did not find them unfitting and therefore were not rated.  The PEB recommended that the applicant be separated with entitlement to severance pay if otherwise qualified.  The applicant concurred with the PEB’s finding and recommendation and waived her right to a formal hearing on 12 March 2004.

7.  On 30 March 2004, the applicant was honorably discharged in accordance with paragraph 4-24b(3) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of physical disability with entitlement to severance pay.  The DD Form 214 she was issued shows she completed 9 months and 13 days of total creditable active service.

8.  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 chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

9.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  Department of Defense Instruction 1332.39 and Army Regulation 635-40, appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Rating can range from 0 to 100 percent, rising in increments of 10 percent.

10.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

11.  The VASRD specifies diagnostic codes for a wide spectrum of diseases and physical impairments covering all major body systems.  The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.  The diagnostic code numbers appearing opposite the listed ratable disabilities are arbitrary numbers for the purpose of showing the basis of the evaluation assigned and for statistical analysis, and extend from 5000 to a possible 9999.  The first two digits will be selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last two digits will be "99" for all unlisted conditions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her records should be corrected to show she was medically retired instead of honorably discharged for disability with entitlement to severance pay.

2.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

3.  The applicant suffered from medical conditions that warranted her entry into the PDES.  She subsequently underwent an MEBD which recommended she be referred to a PEB.  She agreed with this recommendation.  The PEB found her medical conditions prevented her from performing her duties and determined that she was physically unfit for further military service.  The PEB recommended her separation with entitlement to severance pay.  The applicant concurred.

4.  The applicant now believes she should have received full retirement for her medical condition.  However, she provides no evidence or justification to support a higher rating.  The applicant’s physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There is no error or injustice in this case.

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 did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.


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.



      _______ _   _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)                                         AR20080017903



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ABCMR Record of Proceedings (cont)                                         AR20080017903



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