IN THE CASE OF:	

		BOARD DATE:	  21 April 2009

		DOCKET NUMBER:  AR20080018219 


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 removal of the word "Disability" from item 28 (Narrative Reason for Separation) of her DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states she is neither eligible for disability nor received any disability and that as a result of this word on her DD Form 214, she is unable to join the Arizona Army National Guard.  She adds that when she was separated, she was told by officials at the U.S. Army Transition Center that upon the healing of her injury, she would be able to reenter military service.  However, she has been trying to reenter military service for the past five years with no success and was recently informed that the word "disability" on her DD Form 214 is the reason she is unable to reenter military service.

3.  The applicant provides a copy of her DD Form 214, dated 2 January 2001; and a copy of her Department of Veterans Affairs rating decision, dated 26 January 2004, 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 enlisted in the Regular Army on 20 February 1997.  She completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 67R (AH-64 Attack Helicopter Repairer).  

3.  The applicant's records further show she served in Bosnia from 3 June 1998 to 4 September 1998 and Albania from 18 April 1999 to 20 May 1999.

4.  On 11 August 2000, while stationed in Germany, the applicant complained of chronic throbbing, pulsating, and lacinating pain with sleep disturbance to the lateral ankle and foot, related to a previous injury she suffered in Bosnia.  She subsequently underwent a medical examination and was diagnosed with chronic left ankle pain, status post-modified Brostrum. 

5.  On 9 June 2003, a medical evaluation board (MEB) convened at the 6th Squadron, 6th Cavalry, Germany, and determined that the applicant was medically unfit for duty due to chronic left ankle pain, status post-modified Brostrum.  The MEB recommended referral to a physical evaluation board (PEB).  The applicant indicated she did not desire to continue on active duty and agreed with the MEB’s findings and recommendation.  

6.  On 17 November 2000, an informal physical evaluation board (PEB) convened at Walter Reed Army Medical Center, Washington, DC, and after a review of the objective medical evidence of record, the PEB found the applicant's medical and physical impairment prevented satisfactory performance of the duties required by her grade and military occupational specialty and determined that she was physically unfit due to chronic left ankle pain post-modified Brostrum procedure with decreased range of motion.  The applicant was classified under the Veterans Affairs Schedule for Rating Disabilities (VASRD) code 5271 (chronic left ankle pain) and was awarded a 20 percent disability rating.  The PEB recommended the applicant be separated from the service with entitlement to severance pay.  The applicant concurred with the PEB’s findings and recommendation and waived a formal hearing of her case.



7.  On 2 January 2001, the applicant was honorably discharged.  The DD Form 214 she was issued shows she completed 3 years, 10 months, and 13 days of creditable active military service.  Item 25 (Separation Authority) of her DD Form 214 shows the entry “AR 635-40, paragraph 4-24b(3)”; item 26 (Separation Code) shows the entry “JFL”; item 27  (Reentry Code) shows the entry “3”; item 28 shows the entry “Disability-Severance Pay."  Item 18 (Remarks) of this form further shows the entry "Disability, Severance Pay - $11577.60."   

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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/her 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 MEB 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 Department of Veterans Affairs Schedule for Rating Disabilities.  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.  Chapter 61, Title 10, U.S. Code provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency (USAPDA), under the operational control of the Commander, US Army Human Resources Command (USAHRC), Alexandria, VA, is responsible for operating the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in Chapter 61, 10 U.S. Code, and in accordance with Department of Defense (DOD) Directive 1332.18 and Army Regulation 635-40.  
Soldiers enter the Physical Disability Evaluation System four ways:  


	a.  Referred by an MEB.  When a Soldier has received the maximum benefit of medical treatment for a condition that may render the Soldier unfit for further military service, the medical treatment facility (MTF) conducts an MEB to determine whether the Soldier meets the medical retention standards of Army Regulation 40-501, chapter 3.  If the Soldier does not meet medical retention standards, he or she is referred to a PEB to determine physical fitness under the policies and procedures of Army Regulation 635-40; 

	b.  Referred by the MOS/Medical Retention Board (MMRB).  The MMRB is an administrative screening board the chain of command uses to evaluate the ability of Soldiers with permanent 3 or 4 medical profiles to physically perform in a worldwide field environment in their primary military occupation specialty.  Referral to an MEB/PEB is one of the actions the MMRB convening authority may direct; 

	c.  Referred as the result of a fitness for duty medical examination.  When a commander believes a Soldier is unable to perform MOS-related duties due to a medical condition, the commander may refer the Soldier to the MTF for evaluation.  If evaluation results in an MEB, and the MEB determines that the Soldier does not meet medical retention standards, the Soldier is referred to a PEB; and 

	d.  Referred as a result of HQDA action.  The Commander, USAHRC, upon recommendation of The Surgeon General, may refer a Soldier to the responsible MTF for medical evaluation as described in (c) above.  USAHRC also directs referral to a PEB when it disapproves the MMRB recommendation to reclassify a Soldier.

11.  Army Regulation 635-200 (Administrative Separations) states, in pertinent part, that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Table 3-1 included a list of the Regular Army Reenlistment Eligibility Codes (RE codes).  An RE–1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.  An RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted. 


12.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that the Separation Program Designator (SPD) codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The primary purpose of the separation codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of Department of Defense and the military services to assist in the collection and analysis of separation data.  The "JFL" SPD code is the correct code for Soldiers separating under paragraph 4-24b(3) of Army Regulation     635-40 with entitlement to severance pay. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her DD Form 214 should be corrected to remove the word "disability" as part of the narrative reason for her separation.

2.  The evidence of record shows the applicant suffered from a medical condition - chronic left ankle pain - that rendered her unable to satisfactorily perform the duties of her grade and military occupational specialty.  Consequently, her records were evaluated by an MEB that referred her to a PEB.  The PEB found her medically unfit and recommended her separation by reason of physical disability with entitlement to severance pay. 

3.  The evidence of record confirms the applicant’s narrative reason for separation was assigned based on the fact that she was separated under the provisions of paragraph 4-24b(3) due to her medical condition at the time.  Absent the medical condition, there was no fundamental reason to convene an MEB and/or a PEB.  The underlying reason for her MEB/PEB was her chronic left ankle pain.  The only valid narrative reason for separation permitted under that paragraph is "disability.”  Therefore, the applicant received the proper narrative reason for separation.

4.  Furthermore, the Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  Therefore, the applicant is advised that if she desires to reenter military service, she should contact a local recruiter who can best advise her on her eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and may process enlistment waivers for the applicant.





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)                                         AR20080018219



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ABCMR Record of Proceedings (cont)                                         AR20080018219



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