IN THE CASE OF:	

		BOARD DATE:	1 October 2009   

		DOCKET NUMBER:  AR20090001306 


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 makes his request through counsel.

2.  The applicant makes his statements through counsel.

3.  The applicant provides records through counsel in support of this application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's characterization of service be changed from uncharacterized to honorable.

2.  Counsel essentially states the applicant's Entrance Physical Standards Board (EPSBD) failed to recognize that his ankle pain was service aggravated, and he was never considered for separation by a Medical Evaluation Board (MEB) contrary to the advice of the examining physicians on the EPSBD.  He also contends that the applicant was incorrectly discharged under the provisions of Army Regulation 635-200 (Enlisted Personnel), paragraph 5-11 (Separation of Personnel Who Did Not Meet Procurement Medical Fitness Standards).  

3.  The applicant's counsel essentially asserted that while the applicant initially injured his left ankle in a motorcycle accident in 1999, he had made a full recovery from that injury and continued to run on his high school track team after he recovered.  In fact, the applicant never experienced any pain while training and running on his high school track team.  

4.  Counsel provides evidence which has been indexed in a list of enclosures in support of this application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he enlisted in the Regular Army on 6 March 2003.

2.  On 9 April 2003, the applicant was issued a temporary physical profile for chronic ankle pain.  

3.  Also on 9 April 2003, while the applicant was in his second week of one-station unit training, an EPSBD convened at Nelson Medical Clinic, Fort Knox, Kentucky.  The EPSBD proceedings essentially show the applicant stated he had been suffering from left ankle pain for the past 4 years due to a talar neck [ankle] fracture that occurred during a motorcycle accident in 1999.  It also revealed the applicant complained of loss of motion and pain minimally with no activity, and that the pain increased with any activity.  While the EPSBD recommended that the applicant meet a medical board for consideration of separation, it concluded that he did not meet medical fitness standards for enlistment under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 2 (Physical Standards for Enlistment, Appointment, and Induction) paragraph 2-10d(1) (Deformities, disease, or chronic pain of one or both lower extremities that have interfered with function to such a degree as to prevent the individual from following a physically active vocation in civilian life or that would interfere with walking, running, or weight bearing, or the satisfactory completion of prescribed training or military duty).  The EPSBD also determined that the applicant's medical condition existed prior to service and it was not service aggravated.

4.  On 16 April 2003, the medical approving authority approved the findings of the EPSBD.

5.  On 21 April 2003, the applicant concurred with the EPSBD proceedings and requested to be discharged from the Army without delay in Item 21 (Action by Service Member) of the DA Form 4707 (EPSBD Proceedings).  This portion of the EPSBD proceedings also provided the applicant the options of either disagreeing with the EPSBD proceedings if he felt that his condition did not exist prior to service or if he felt his condition was not disqualifying on entry but was aggravated by service if he so desired.  

6.  On 23 April 2003, the proper discharge authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 5-11.  
On 30 April 2003, the applicant was discharged from the Army after completing 
1 month and 25 days of active duty service.  Item 24 (Character of Service) of his DD Form 214 shows an entry of "Uncharacterized."

7.  On 18 September 2008, the Army Discharge Review Board denied the applicant's request to change the characterization of his service.

8.  The Department of Veterans Affairs (DVA) Rating Decision, dated 8 August 2007, that the applicant provided essentially shows he received a 
10 percent disability rating for service-connected osteoarthritis in his left ankle joint, post status talar fracture, and it was raised to a rating of 20 percent effective 25 June 2007.  The examiner who conducted the applicant's examination on this date opined that the x-ray evidence tended to support the diagnosis of ankle osteoarthritis status post talar fracture.  This examiner also opined that while almost all of the applicant's ankle problems were the direct result of his open ankle fracture/dislocation on 25 June 1999, the stressors associated with the military undoubtedly aggravated his ankle arthritis.

9.  The applicant's counsel also provided two third-party letters; one from an Army captain who trained and competed with the applicant in high school, and the other from the applicant's high school cross country and track and field coach.  Both of these letters essentially stated that the applicant made a full recovery from his 1999 ankle injury.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-11 sets the policy and prescribes procedures for separating members who were not medically qualified under procurement medical fitness standards when accepted for enlistment or who became medically disqualified under these standards prior to entry on active duty.  Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by appropriate military medical authority within   6 months of the Soldier’s initial entrance on active duty that would have permanently or temporarily disqualified him for entry into the military service or entry on active duty had it been detected at that time and does not disqualify him or for retention.  

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System.  It sets forth policies, responsibilities and procedures that apply in determining whether a Soldier is unfit because of physical disability.  Paragraph 3-3 states that, according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service.  One example shown is healed fractures.  This regulation also provides, in pertinent part, that after a Soldier is accepted for active duty, discovery of an impairment causing physical disability is not conclusive evidence that the condition was incurred after acceptance.  The Soldier's length of service must be considered when determining service aggravation.   

12.  Army Regulation 635-40, Appendix B (Army Application of the Department of Veterans Affairs Schedule for Rating Disabilities), paragraph B-10 (Rating of Disabilities Aggravated by Service), states, in pertinent part, that hereditary, congenital, and other conditions that existed prior to entry onto active duty frequently become unfitting through natural progression and should not be assigned a disability rating unless service aggravated complications are clearly documented or unless a Soldier has been permitted to continue on active duty after such a condition, known to be progressive, was diagnosed or should have been diagnosed.

13.  Army Regulation 635-5 (Separation Documents) provides, in pertinent part, guidance on the preparation of the DD Form 214.  For item 24, an entry of "Honorable"; "Under Honorable Conditions (General)"; "Under Other Than Honorable Conditions"; "Bad Conduct"; "Dishonorable"; or "Uncharacterized" will be entered.  An entry of "Uncharacterized" is appropriate for Soldiers in an entry level status.  Entry level status is defined as the first 180 days of continuous active duty.

14.  Title 38, U.S. Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a DVA rating does not establish error or injustice in whether or not an Army rating is given, or in an Army rating that is given.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies an individual from further military service.  The DVA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different positions.  Furthermore, unlike the Army, the DVA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the DVA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and his counsel contend that the applicant's characterization of service should be changed from uncharacterized to honorable.

2.  The evidence that was provided was carefully considered.  While the applicant's counsel raised many issues, however, the crux of these proceedings are the applicant and his counsel believe the applicant’s ankle condition should have been classified as service-connected, he should have been honorably discharged, and the separation authority should not have been paragraph 
5-11 of Army Regulation 635-200.

3.  Notwithstanding the argument provided by the applicant's counsel, the EPSBD proceedings clearly show that by the applicant's own admission, he had been suffering from left ankle pain 4 years prior to those proceedings even with no activity, and as such the EPSBD properly determined that his ankle condition existed prior to service and was not aggravated by his brief period of active duty service.  The applicant concurred with these proceedings, even though he had the right to disagree with the proceedings if he felt his condition did not exist prior to service or if he felt his condition was not disqualifying on entry but was aggravated by his service.  

4.  As the applicant's medical condition was identified by appropriate military medical authority within 6 months of his initial entrance onto active duty, and the fact that his medical condition would have permanently or temporarily disqualified him from entry into the military service or entry on active duty had it been adequately known at that time, he was properly and appropriately discharged under the provisions of Army Regulation 635-200, paragraph 5-11.  The evidence shows that the applicant's rights were protected throughout the EPSBD process.

5.  The fact that the applicant's counsel contends that the applicant should have gone before a medical board was considered.  However, even if the applicant had gone before a medical board and it was determined that his ankle condition was service aggravated and he was discharged, his service would still be “uncharacterized,” as he clearly would still have been within the first 180 days of continuous active duty service.  
6.  It appears that after the applicant underwent a DVA examination on 25 June 2007, the DVA made a presumptive determination that the applicant's ankle condition was service-connected.  However, while the DVA, in its own discretion, has the authority to implement a presumptive decision-making process for veterans, the regulation governing the ABCMR states that it will begin its consideration of each case with the presumption of administrative regularity.  Based upon the evidence of record the applicant had complained of left ankle pain during the 4 years prior to his EPSBD proceedings; therefore, it appears that the applicant was properly discharged.

7.  In the absence of evidence which proves to the contrary, and by a preponderance of the evidence, it is presumed that the applicant's EPSBD proceedings indicated that he had been suffering from left ankle pain as a result of a motorcycle accident 4 years prior to the proceedings because he told military officials during basic training that was the case.  The applicant provides insufficient evidence to show otherwise.

8.  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 has failed to submit evidence that would satisfy this requirement.  In view of the foregoing, there is no basis for changing the characterization of service from uncharacterized to honorable.  

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)                                         AR20090001306



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ABCMR Record of Proceedings (cont)                                         AR20090001306



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