IN THE CASE OF:	  

		BOARD DATE:	  28 July 2009

		DOCKET NUMBER:  AR20090006465 


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 her uncharacterized discharge be corrected to an honorable discharge.  She also requests that she be given a medical evaluation board (MEBD).

2.  The applicant states she broke her tibia (the inner and usually larger of the two bones of the leg between the knee and ankle) and her fibula (the outer or postaxial and usually the smaller of the two bones of the hind or lower limb below the knee.  It is the slenderest bone of the human body in proportion to its length and its lower end forms the external malleolus of the ankle).  She states she had surgery and spent 6 months recovering.  The applicant states she was offered an MEBD but she wanted to get out and go to physical therapy.  She thought she was signing for an honorable discharge but when she went to the Department of Veterans Affairs (VA) she found the discharge was uncharacterized.

3.  The applicant provides 11 pages of excerpts from her official military personnel file (OMPF) in support of her application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel records show she enlisted in the U.S. Army Reserve (USAR) on 22 February 2008.  She entered initial active duty for training (IADT) on 5 March 2008.



2.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 19 September 2008, documents an injury suffered by the applicant on 21 April 2008.  According to this form, the applicant suffered a closed fracture of her right ankle – bimalleolar when she fell during the obstacle course.  Her injury was determined to be in the line of duty.  

3.  A memorandum for record, dated 19 September 2008, from the Physical Therapy Department, Moncrief Army Community Hospital, Fort Jackson, SC, stated the applicant was originally sent to physical therapy on 12 June 2008 for her right ankle.  According to the memorandum the applicant had 14 weeks of therapy but she was still unable to tolerate running for even a few minutes due to right ankle pain.  It was determined that there was no need for the applicant to continue rehabilitation; she had reached the maximum benefit from physical therapy.  It was determined the applicant needed sufficient time to completely heal without running.  It was recommended that the applicant’s chain of command consider the applicant for discharge under the provisions of paragraph 5-17 of Army Regulation 635-200 (Personnel Separations).  Prior to this date, on 10 September 2008, orthopedics recommended that the applicant be discharged under the provisions of paragraph 5-17, Army Regulation 635-200. 

4.  On 24 September 2008, the applicant completed a DD Form 2697 (Report of Medical Assessment).  She indicated on the form she had broken her tibia and fibula, had surgery, and after 4 months she still could not complete training due to her inability to run.

5.  In an undated memorandum, the applicant's commander notified the applicant he was initiating action to separate her under the provisions of paragraph 5-17, Army Regulation 635-200 (Other Designated Physical or Mental Conditions) with an honorable discharge.  The commander stated the reason for the proposed separation action was the applicant had been treated extensively for lower extremity pain and that due to her lack of physical preparation prior to enlistment her recovery period would be prolonged.  The commander stated the applicant’s prognosis and recovery time would unreasonably interfere with her ability to successfully ship to training.  

6.  The commander also advised the applicant of her right to consult with counsel prior to completing her acknowledgement.  She was also advised of her right to submit a statement in her own behalf, to obtain copies of documents that would be sent to the separation authority, to request a hearing before an administrative separation board, to waive any of these rights, and to withdraw any waiver at any time prior the separation authority approving her separation.

7.  On 10 October 2008, the applicant was formally counseled concerning the recommendation for separation due to a medical condition was not conducive to military service.

8.  On 18 October 2008, the applicant acknowledged receipt of the separation recommendation.

9.  In an undated memorandum, the applicant acknowledged that she had been advised of the basis for the contemplated separation action.  The applicant waived her right to consult with military counsel and/or civilian counsel and declined to submit a statement in her own behalf.  She did request copies of the documents being provided to the separation authority. 

10.  In an undated memorandum, the applicant's commander recommended that the applicant be separated under the provisions of paragraph 5-17, Army Regulation 635-200 with an honorable discharge.  The commander stated the applicant had been treated extensively for lower extremity pain and her prognosis and recovery time would unreasonably interfere with her ability to successfully ship to training.  The commander stated that due to the applicant's lack of physical preparation prior to enlistment her recovery period would be prolonged.  The commander also stated physical therapy recommended that the applicant be separated.  Additionally, the commander stated the applicant did not meet the criteria for referral to a physical evaluation board.

11.  On 23 October 2008, the applicant's intermediate commander recommended separation with an honorable discharge.

12.  On 31 October 2008, the separation authority approved the recommendation for separation under the provisions of paragraph 5-17, Army Regulation 635-200 and directed that the applicant be issued an honorable discharge.

13.  On 6 November 2008, the applicant was discharged under the provisions 
of paragraph 5-17, Army Regulation 635-200.  She had completed 8 months and 2 days of active service.  The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty), Item 24 (Character of Service) contains the entry "UNCHARACTERIZED."

14.  Paragraph 5-17 of Army Regulation 635-200 provides commanders with the authority to approve separations under this paragraph on the basis of other physical or mental conditions not amounting to disability and excluding those personnel who did not meet procurement medical fitness standards and those diagnosed with a personality disorder.  A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition.

15.  The Glossary contained in Army Regulation 635-200 defines entry-level status for USAR Soldiers as beginning upon enlistment in the USAR and, for Soldiers ordered to IADT for one continuous period, terminating 180 days after the beginning of training.  For Soldiers ordered to IADT for the split or alternate training option, it terminates 90 days after beginning Phase II advanced individual training (AIT).  Soldiers completing Phase I basic training or basic combat training remain in an entry-level status until 90 days after beginning Phase II.  Paragraph 3-9 of this regulation states a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in an entry-level status.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a MEBD.  Those members who do not meet medical retention standards based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness) will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

17.  Army Regulation 635-5 (Separation Documents), then in effect, stated, in pertinent part, that a DD Form 214 may be reissued when the character of service is to be changed.

18.  Army Regulation 635-5 directs, in pertinent part, that when a DD Form 214  is administratively issued or reissued the entry: “DD FORM 214 ADMINISTRATIVELY ISSUED/REISSUED ON (date).” will be entered in Item   18 (Remarks) on all copies unless the appellate authority, Executive Order, or the Secretary of the Army defectively specifies otherwise.  

19.  Army Regulation 635-5 also directs that for a Soldier who has their SERVICE CHARACTERIZATION upgraded, enter (on copies 2 through 8) "SERVICE CHARACTERIZATION UPGRADED ON (date) FOLLOWING APPLICATION DATED (DATE)."





DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the USAR on 22 February 2008 and entered IADT on 5 March 2008.  In an undated memorandum, the applicant was notified that she was being recommended for separation action.  The applicant acknowledged notification on 18 October 2008.  It is reasonable to conclude the commander's memorandum was initiated immediately, or within a few days, prior to 18 October 2008.  Therefore, the applicant's separation processing was initiated well after she had completed 180 days of active duty.

2.  The applicant was not in an entry-level status at the time her separation action was initiated.  Therefore, she does not meet the criteria for an uncharacterized discharge.  The applicant's commander and intermediate commander recommended that she receive an honorable discharge.  The discharge authority directed that she be issued an honorable discharge.  Therefore, it is appropriate to change the characterization of her discharge to honorable.

3.  Based on the change of characterization, the applicant should be reissued a DD Form 214.  The new DD Form 214, Item 18 should include the entry: “DD FORM 214 ADMINISTRATIVELY ISSUED/REISSUED ON (date).”  In addition, item 18 (copies 2 through 8) should include the entry "SERVICE CHARACTERIZATION UPGRADED ON (date) FOLLOWING APPLICATION DATED 16 February 2009."

4.  The evidence of record, statements from physical therapy, and the applicant's command show the applicant's medical condition did not fail to meet retention standards.  Therefore, her medical condition did not warrant consideration by an MEBD.  Without an MEBD, there would have been no basis for referring the applicant to a PEB.  Without a PEB, the applicant could not have been issued a discharge with severance pay or retired for physical unfitness.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ____X__  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  upgrading the characterization of the individual's discharge to honorable and reissuing a DD Form 214 for the period of service from 5 March 2008 to 
6 November 2008.  

   b.  Entering in item 18 of (copies 2 through 8) the entry: "SERVICE CHARACTERIZATION UPGRADED ON (date) FOLLOWING APPLICATION DATED 16 February 2009."

   c.  Entering in item 18 of (copies 2 through 8) the entry: “DD FORM 214 ADMINISTRATIVELY REISSUED ON (date).” 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to an MEBD.  




      _______ _  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)                                         AR20090006465



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ABCMR Record of Proceedings (cont)                                         AR20090006465



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