IN THE CASE OF:	  

		BOARD DATE:	  8 December 2009

		DOCKET NUMBER:  AR20090010165 


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 discharged instead of honorably released from active duty.

2.  The applicant states that she should have been medically discharged.  Instead, she was rushed out of the service without the proper physical and consideration.  She also states that prior to release she had two surgeries and was required to have several more.  She adds that she was injured while on active duty when she fell off a ladder while assisting her husband during his permanent change of station move to Fort Stewart, GA.  Her husband was incapable of caring for himself at the time due to having chronic Hepatitis C.  She also states that while she was in the process of being released, she received her outprocessing papers from her personnel office on a Friday before a 4-day weekend (4 July 2006 was on a Tuesday).  She could not start outprocessing until the following Wednesday.  She states that her commander initially told her not to worry about anything because he would stop the outprocessing and help her medically and that he (the commander) told other Soldiers the same thing.  However, when he came to work, he instructed one of the sergeants to start her out processing.  She also states that the doctor had given her 30 days of convalescent leave which she submitted to her commander for approval but he ignored it and she was still outpoccessed.  She wants her discharge changed to a medical discharge so she may receive the benefits that she is entitled to receive.

3.  The applicant provides the following additional documentary evidence in support of her request:
	a.  Various medical reports, diagnosis, and billing statements from Southside Regional Medical Center, dated on miscellaneous dates in July 2006.

	b.  Photographs of a leg injury.

	c.  The applicant's husband's request for a compassionate reassignment with allied documents and statements. 

	d.  Miscellaneous medical records, charts, documents, reports, slips, and chronological records of medical care, dated on various dates between 2005 and 2008.

	e.  Department of Veterans Affairs (VA) medical records, dated on various dates between 2006 and 2009.

	f.  Medical evaluation reports, diagnosis, and daily notes from Effingham Rehabilitation Services, Rincon, GA, dated on various dates between 2006 and 2009.

	g.  A Medical Discharge Summary from St, Joseph's/Candler, Savannah, GA, dated 30 May 2007.

	h.  Medical records, reports, outpatient records, emergency room notes, and other medically related documents from Memorial Health, University Medical Center, Savannah, GA.

	i  An Orthopaedic Surgery and Sports Medicine Report, dated on 5 December 2008.

4.  On 26 October 2009, a staff member of the Army Board for Correction of Military Records (ABCMR) contacted the applicant in regard to personal, unopened mail items/letters (Credit Card Offers) that were enclosed with her application.  The documents were returned to her on the same date. 

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show she enlisted in the Regular Army for a period of 4 years on 30 December 2003.  She completed basic combat and advanced individual training and was initially awarded military occupational specialty (MOS) 42A (Human Resources Specialist).  Her records also show she executed a       3-year reenlistment on 11 January 2006.  The highest rank/grade she attained was specialist/E-4.  She was assigned to the 260th Quartermaster Battalion, Fort Stewart, GA. 
2.  On 25 May 2006, the applicant submitted a DA Form 4187 (Personnel Action) requesting separation under the provisions of chapter 6 of Army Regulation   635-200 (Personnel Separations) by reason of hardship.  In connection with this request, she also submitted a self-authored statement in which she described her husband’s illness, geographical separation from her husband, and the financial hardship associated with travelling back and forth as well as maintaining two households in two different States. 

3.  On 31 May and 1 June 2006, the applicant’s immediate and intermediate commanders recommended approval of her request for separation.

4.  On 21 June 2006, the separation authority approved the applicant’s request for separation.  Accordingly, she was honorably released from active duty on    10 July 2006.  The DD Form 214 she was issued shows she was separated under the provisions of chapter 6 of Army Regulation 635-200 with an honorable character of service.  This form further shows she completed 2 years, 6 months, and 11 days of creditable active service. 

5.  The exact facts and circumstances surrounding the applicant's injury are not available for review with this case.  However, the applicant submitted voluminous copies of medical reports, diagnosis, photographs, records of medical care, in/outpatient records of medical care, emergency room and doctor notes, and other medically related documents mostly from civilian physicians/hospitals and/or the DVA.  A review of the medical documents indicates the following:

	a.  The applicant fell off a ladder on 4 July 2006 and sustained an open right fracture to her ankle while in the State of VA on 4 July 2006.  She was subsequently admitted to Southside Regional Medical Center, Petersburg, VA, and was diagnosed with an open fracture, right tibial pilon, Gustilo type 3A, with an associated fibular shaft fracture.  She underwent irrigation, debridement and external fixation of right tibial pilon fracture.  She tolerated the procedure well and was transferred to the recovery room in stable condition.

	b.  On 7 July 2006, the applicant was recommended for a second look at the irrigation and debridement of the right tibial fracture.  Her wound was reopened for performance of a careful and a traumatic debridement of the margins.  Her wound was then closed without skin tension and with application of dressings.  

	c.  The applicant was seen at Winn Army Community Hospital (WACH), Fort Stewart, GA, on 10 July 2007.  The attending physician examined her right ankle but found no sign of infection and her incision was intact with sutures.  She had a passive range of motion of her toes. 

	d.  The applicant was examined at WACH, Fort Stewart, GA, on 17 July 2007 for ankle pain. The attending physician examined her right ankle and indicated that based on computed tomography (CT) findings of extensive "conminution" and articular injury of both the tibia and talar dome.  It was determined that a minimal open reduction and percutaneous screw fixation in combination with a delta frame was the best option for treatment.

	e.  The applicant was examined at WACH on 24 July 2006 for right ankle pain.  The attending physician indicated the applicant was doing well and that her pain was medically managed with medication.  Her pin site and incision were clean, dry, and closed, and she was able to move her toes with some discomfort. 

	f.  She was seen at WACH on 24 July 2006 for right ankle pain.  The attending physician indicated that she was doing well and that her pain was medically managed with medication.  Her pin site and incision were clean, dry, and closed, and she was able to move her toes with some discomfort. 

	g.  She was seen at Martin Army Community Hospital, Fort Benning, GA, on 27 November 2007.  The attending physician indicated that the applicant had undergone four surgeries, two in Virginia at the place of injury and two in Georgia.  She later developed arthritis and plantar flexion contracture of the right ankle.  On 24 July 2007, she had an arthroscopic debridement of the right ankle and application of an external fixator for arthrodiastasis and equines correction.  She was followed postoperatively at Fort Stewart, GA, and returned to Fort Benning for removal of the external fixator.  On examination, there was minimal residual edema of the right foot and ankle, and there were multiple well-healed incisions.  She had good, active motion of the toes with good sensation, color, capillary refill, and warmth.  She successfully underwent a removal of external fixator and was moved to a recovery room. 

6.  There is no evidence in the applicant’s records that indicate her injury was determined to be in line of duty; that it led to the issuance of a permanent physical profile; or a determination was made by medical authorities and/or her commander that her injury warranted entry into the Physical Disability Evaluation System (PDES).  Additionally, there is no evidence in the applicant’s records that indicate she underwent a medical evaluation board (MEBD) or a physical evaluation board (PEB).

7.  The applicant submitted a voluminous copy of her DVA medical records dated between 2006 and 2008 in which she complained of tobacco use disorder, history of a fall, major depression, trichomonas vaginitis, paresthesia, depressive disorder, obesity, hip pain, and malunion of fracture.  However, there is no evidence of a rating decision.
8.  An advisory opinion was obtained on 20 November 2009 from the Director, Health Policy and Services, Office of the Surgeon General (OTSG), Falls Church, VA.  The Director opined that the applicant has a past medical history of a severe open tibial plafond fracture and that her current medical condition should be referred to an MEBD.

9.  The applicant was provided a copy of this advisory opinion on 20 November 2009; however, she did not respond.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army.  Chapter 6 provides for the separation of enlisted personnel by reason of dependency or hardship.  Paragraph 6-3 states that Soldiers of the Active Army and the Reserve Components may be discharged or released because of genuine dependency or hardship.  The regulation provides that hardship exists when, in circumstances not involving death or disability of a member of a Soldier’s (or spouses) immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship.  

11.  Army Regulation 600-8-1 (Army Casualty Program), in pertinent part, provides that a line of duty investigation must be conducted in all cases of injury not a result of enemy action.  It states it is essential to arrive at a determination as to whether misconduct or negligence was involved in the disease, injury, or death and, if so, to what degree.  Depending on the circumstances of the case, an investigation may or may not be required to make this determination.  It states any physical condition having its inception in line of duty during one period of service or authorized training in any of the Armed Forces which recurs or is aggravated during later service or authorized training, regardless of the time between, should be in line of duty.  

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES 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 the office, grade, rank, or rating.  It provides for MEBDs, 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.  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.  

13.  Army Regulation 635-40 states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  

14.  Army Regulation 40-501 (Standards of Medical Fitness) 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 VA Schedule for Rating Disabilities (VASRD).  Department of Defense Instruction (DODI) 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.  

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

16.  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 higher VA rating does not establish error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the VA can evaluate a veteran throughout the Soldier's lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

17.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her records should be corrected to show she was medically discharged. 

2.  The available evidence shows that on 4 July 2006, 6 days prior to her discharge, the applicant sustained an open fracture to her ankle.  Her injury appears to have required several corrective surgeries.  However, there is no indication that a line of duty investigation was conducted by her commander. Under the regulatory guidance in Army Regulation 600-8-1, a line of duty investigation should have been initiated when she was injured on 4 July 2006.  

3.  Since there is no evidence to indicate the applicant’s injuries was the result of her misconduct or willful negligence, if a line of duty investigation had been properly initiated concerning her injury, an informal investigation would have been conducted and her initial injury would have been determined to be in line of duty.  Additionally, since it appears reasonable to presume her injury would have been determined to be in line of duty, she would have been referred to the PDES for an MEBD to document her medical status and duty limitations.

4.  Based on the above, the applicant may have met the criteria for referral to the PDES under the provisions of Army Regulation 635-40.  At this point, it cannot be determined if the applicant met/meets the criteria for a medical discharge.  Nevertheless, she should be afforded the opportunity to have her medical fitness determined by an MEBD.

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 offering her the opportunity to undergo a physical evaluation to determine her fitness for retention in the Army:

	a.  By directing the Office of the Surgeon General to contact her and arrange, via appropriate medical facilities, a physical evaluation.

	b.  If appropriate, referral to an MEBD and, if necessary and applicable, an informal PEB.

2.  The Office of the Surgeon General is directed to use appropriate invitational travel orders to accomplish the physical evaluation and, if necessary, the MEBD and PEB.

3.  In the event that a formal PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of her case by a formal PEB.  All required reviews and approvals will be made subsequent to completion of the formal PEB.

4.  Subsequent to a final determination in her case concerning her fitness for retention in the Army, the individual concerned may be processed for medical separation if and as appropriate.

5.  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 showing the applicant was medically discharged. 




      _______ _   _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)                                         AR20090010165



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ABCMR Record of Proceedings (cont)                                         AR20090010165



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