IN THE CASE OF:	  

		BOARD DATE:	       11 AUGUST 2009

		DOCKET NUMBER:  AR20090004212 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show that she was discharged by reason of physical disability.

2.  The applicant states the “actual” reason for her discharge is not reflected on her DD Form 214.  She states she was injured on 12 July 2004 during physical training but she was made to continue to run and as a result was late getting to the medical clinic and, therefore, she was not seen that day.  She states she returned to the clinic on 16 July and was told she had a stress fracture.  The applicant notes she continued to experience pain, received various “codes,” and was finally found to have a broken toe.  She states by 26 July 2004 her foot was still swollen and she was told to wear a medical shoe to restrict the movement and pressure on her foot.  She notes that after several follow-up sessions with the podiatrist she was ultimately placed on 30 days of convalescent leave. 

3.  The applicant states she returned from convalescent leave around the beginning of October 2004 and she was finally seen by medical personnel on
15 October 2004.  Although some healing was noted her physician questioned whether she would be able to continue in service.  Ultimately, she states separation processing was begun and when she asked what a “Chap 11 discharge” was.  She states she was told it referred to a “basic inability to complete service, including medical reasons.”


4.  The applicant maintains she was lied to, that she was not afforded an opportunity to ask questions, and that she would not have signed her DD Form 214 if she had known her discharge had no medical connotation.  The applicant states her discharge has impacted her employment with the local sheriff’s department and that she will not be able to enter the police academy.  She states her DD Form 214 makes it appear that she was released for misconduct.

5.  The applicant provides a copy of her DD Form 214 and copies of medical treatment documents in support of her 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.  Records available to the Board indicate the applicant enlisted and entered active duty as a Regular Army (RA) Soldier on 24 June 2004.  She was a high school graduate and 18 years old at the time.  Her entrance physical examination made no mention of any medical conditions which would preclude enlistment in the Army.

3.  According to medical documents provided by the applicant, she was seen by medical personnel with a chief complaint of leg and ankle pain on 12 July 2004.  The documents noted she had been experiencing leg pain for about 12 days and began experiencing ankle pain on 12 July 2004.  The applicant was prescribed ibuprofen for pain.  There was no indication of any physical limitations.

4.  The medical treatment documents provided by the applicant show she continued to seek medical attention for her ankle and leg pain on 16 and 23 July and on 26 July was prescribed a medical shoe in addition to continued use of ibuprofen.  


5.  On 10 August 2004 the applicant was seen at the medical clinic for ankle and foot pain.  The 10 August 2004 treatment document notes a stress fracture to her left foot of 3 to 4 weeks duration and a fractured toe.  The document indicated she continued to take ibuprofen and that she was to see the podiatrist.

6.  On 16 August 2004 she had a follow up appointment which noted some swelling of her foot but otherwise “well healing.”  The document notes her profile “code” was updated.

7.  Medical treatment documents note she had follow up medical visits on 
23 August 2004, 8 October 2004, 12 October 2004, and 15 October 2004.  There is no indication the applicant was placed on convalescent leave and no indication that medical personnel recommended that she be discharged through medical channels.

8.  On 18 October 2004 the applicant was counseled by her unit commander, her unit first sergeant, and another unidentified military individual concerning a recommendation for administrative separation under the entry level separation program for her inability to meet minimum standards for successful completion of training because of a lack of aptitude, ability, motivation, or self-discipline.  The counselors each noted the applicant continued to have poor motivation to return to duty and continued to have pain with minimal activities.  The applicant agreed with the counseling and made no statements in her own behalf.

9.  On 25 October 2004 the applicant’s unit commander informed the applicant that he was recommending her separation under the provisions of Army Regulation 635-200 (Personnel Separation – Active Duty Enlisted Administrative Separations), chapter 11 (Entry Level Performance and Conduct) for “sociological reason.”  He noted that he was proposing separation because of the applicant’s failure to adapt to military life, her failure of the “soldierization” process, and her lack of self-discipline and motivation necessary to complete basic training.  The applicant acknowledged receipt of the proposed separation and waived her rights.  She acknowledged that she was receiving an entry level separation and that her service would be uncharacterized.

10.  On 28 October 2004 the applicant was discharged accordingly.  Her service was uncharacterized and the narrative reason for her separation was recorded as “entry level performance and conduct.”  The applicant was credited with 
4 months and 5 days of active Federal service.



11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of that regulation provides for the separation of 
personnel during the initial 180 days of service while still in an entry-level status.  The policy applies to Soldiers who have demonstrated that they are not qualified for retention because they cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline.  These Soldiers are separated with an uncharacterized discharge under the provisions of chapter 11, by reason of entry-level performance and conduct.  

12.   Army Regulation 635-200, chapter 5, 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 Soldier's 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 an entry-level status.  

13.  Army Regulation 40-501 (Standards of Medical Fitness) provides, in pertinent part, that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank or rating.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) contains guidance on standards of unfitness because of physical disability.  It states, in pertinent part, 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  

15.  That same regulation states that commanders may refer members to the servicing medical treatment facility for medical evaluation when it is believed that the member is unable to perform the duties of his office, grade, rank, or rating because of physical disability.  Commanders of medical treatment facilities who 
are treating patients in an assigned, attached or outpatient status may also initiate action to evaluate a member’s physical ability to perform the duties of his office, grade, rank, or rating.

16.  Army Regulation 635-40 also states that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.  

DISCUSSION AND CONCLUSIONS:

1.  While the evidence of record does confirm the applicant was treated on multiple occasions for leg, ankle, and foot pain, there is no evidence, and the applicant has not provided any evidence, that these conditions rendered her unfit.

2.  The applicant’s unit commander, or any of the medical professionals involved in the applicant’s medical treatment, could have initiated actions to refer the applicant for disability processing.  The fact that she was never referred for disability processing is evidence that her lower extremity pain was not sufficiently disabling to warrant such processing.  

3.  The applicant’s argument that she was lied to about her separation and would not have signed her DD Form 214 if she knew her discharge had no medical connotations is without foundation.  The commander stated that the basis for recommending the applicant be separated was “sociological” and based on the applicant's failure to adapt to military life, her failure of the “soldierization” process, and her lack of self-discipline and motivation necessary to complete basic training.  

4.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize her rights.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  While it is unfortunate that the reason for her discharge and her uncharacterized service is impacting her ability to pursue civilian employment it does not serve as a basis to change either the reason for her discharge or the characterization of her service.

6.  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 the aforementioned requirement.

7.  In view of the foregoing, there is no basis for granting 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)                                         AR20090004212



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ABCMR Record of Proceedings (cont)                                         AR20090004212



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