IN THE CASE OF:	  

		BOARD DATE:	  18 March 2010

		DOCKET NUMBER:  AR20090011432 


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 reconsideration of his earlier request for correction of his military records to change the character of his service and the narrative reason for separation to show the Army separated him due to physical disability.

2.  The applicant states that he now knows it is his responsibility to prove his case.  Subsequent to the Board's earlier denial, he has obtained additional documents that were not considered.

3.  The applicant provides, in support of his request for reconsideration, copies of the Board's Record of Proceedings, dated 3 March 2009; Department of Veterans Affairs (VA) rating decision, dated 26 November 1984; FB Form 90 (Record Fire Scorecard); DA Form 705 (Army Physical Readiness Test Scorecard); two DA Forms 4856 (General Counseling Form), dated 9 September and 6 October 1983; FB Form 6 (Trainee Discharge General Data Sheet), dated 19 October 1983; FB Form Letter 1 (Proposed Separation under the Provisions of Trainee Discharge Program), dated 19 October 1983; DA Form 2823 (Sworn Statement), dated 4 November 1983; Separation Orders 217-27, dated 
15 November 1983; DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 16 November 1983; DA Form 3647 (Inpatient Treatment Record Cover Sheet), dated 12 November 1983, with attachments; and VISTA Electronic Medical Documentation (Medications), (Lab Results), and (Progress Notes) printed in June 2009.



CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080010743, on 3 March 2009.

2.  The applicant's enclosures are new evidence that require the Board's consideration.

3.  When the applicant's case was originally considered the applicant's records did not contain the facts and circumstances surrounding his discharge action.  In particular, there was no evidence showing he sustained an injury that led to his discharge.  The applicant's service is uncharacterized because he was still in an entry level status at the time of separation.  The Board found no error or injustice and denied the applicant's request.

4.  The VA Form 21-6796 dated 26 November 1984 indicates the VA granted service connection for a right ankle injury with a zero percent disability rating.

5.  The FB Form 90 (undated) reports the applicant had qualified as a marksman with his service rifle.

6.  The DA Form 705 (undated) reports he performed 18 pushups, 54 sit ups, and completed the 2-mile run in approximately 13 minutes.  His points totaled 197.

7.  The applicant provided two DA Forms 4856:

	a.  On 9 September 1983, the applicant was counseled about the importance of physical readiness training.  He had fallen out of the 3/4 mile run.

	b.  On 6 October 1983, the applicant was counseled about his negative attitude.  He lacked self discipline and motivation and was a disruptive influence on the platoon.

8.  FB Form Letter 1, dated 19 October 1983, notified the applicant of the commander's intent to separate him from the military under the provisions of Army Regulation 635-200, chapter 11, in an entry level status.  The commander cited the applicant's immaturity, total disregard for authority, and lack of self discipline and motivation as the bases for his actions.  The commander advised the applicant of his rights and explained that his service would be uncharacterized.  On 25 October 1983, the applicant signed the letter.
9.  On 4 November 1983, the applicant completed a DA Form 2823, essentially stating that his bad attitude, lack of motivation, lack of self discipline and disrespect for authority were due to his injury.  He was on profile for 3 or
4 weeks.  He had a lot of time to think about the trainee discharge program.  He also thought about the recycle program.  He had become very depressed and started to get a very poor attitude towards life and everything in general.  He came to the conclusion that he wanted to be a Soldier, and if recycled for a second chance, he would prove himself capable.

10.  FB Form 6, dated 8 November 1983, reported that the applicant's performance and attitude had continued to deteriorate since his leg injury.  He had a problem performing physical duties due to his leg injury; however, medical authorities returned him to full duty.

11.  DA Form 3647, dated 12 November 1983, with attached record of treatment, shows the applicant was admitted to the hospital at Fort Benning, Georgia on
9 November 1983 for a sudden onset of fever and chills, generalized body aches, sore throat and cough.  The clinical record indicates he had no physical disabilities or limitations.  He was treated with antibiotics and returned to his unit on 12 November 1983.

12.  Progress notes from the VA Medical Center, San Francisco, California, for the period between 5 April and 28 June 1996, show the applicant was treated for an ankle injury that the applicant states occurred 12 years earlier.  He was also referred to an outside psychiatrist for evaluation of post traumatic stress disorder (PTSD).

13.  Progress notes from the VA Medical Center, San Jose, California, for 
22 October 22 1996 through 22 July 1998 indicate the applicant still had chronic ankle instability.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, in effect at the time, provided for the separation of personnel due to unsatisfactory performance, conduct, or both, while in an entry level status.  This provision of the regulation applied to individuals who had demonstrated that they were not qualified for retention because they could not adapt socially or emotionally to military life, or because they lacked the aptitude, ability, motivation or self discipline for military service, or that they had demonstrated characteristics not compatible with satisfactory continued service.  The regulation states that a Soldier is in an entry level status if the Soldier has not completed more than 180 days of creditable continuous active duty prior to the initiation of separation action.  The Soldier’s service is uncharacterized when separated under this chapter.
15.  Army Regulation 635-200, paragraph 3-9 (Uncharacterized separations), provides, in pertinent part, that a separation will be described as an entry level separation with service uncharacterized, if processing is initiated while a Soldier is in entry level status.

16.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, or rating and the conditions must have been incurred while entitled to base pay.

17.  Army Regulation 635-40 (Physical Evaluation, for Retention, Retirement, or Separation), governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  In pertinent part, it states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  It states that 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.

18.  Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he sustained an injury while on active duty that caused him to be discharged.  Accordingly, he wants his DD Form 214 corrected to show he was separated due to a physical disability.

2.  The evidence provided by the applicant clearly shows he sustained an injury to his ankle and that it caused him difficulty in the performance of his duties.  However, the evidence does not sufficiently show he was disabled to the extent that he was unable to perform his duties to at least a minimum satisfactory standard.
3.  There is no evidence showing the applicant's medical condition was medically unfitting for retention at the time.  Therefore, there was no basis for medical retirement or separation.  He was separated from active duty for reasons other than physical disability.

4.  Furthermore, the new evidence clearly shows his discharge was based on his immaturity, total disregard for authority, and lack of self discipline and motivation.
5.  The VA recognized his ankle injury and granted him service connection, but with a zero percent disability rating.

6.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army for physical disability.  Operating under its own policies and regulations, the VA has neither the authority nor the responsibility for determining medical unfitness for military duty.  The VA may award a rating because a medical condition is related to service and affects the individual's civilian employability.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability rating based upon that agency's examinations and findings.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he can be medically retired or separated.

7.  In view of the above, the Board should deny 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 to amend the decision of the ABCMR set forth in Docket Number AR20080010743, dated 3 March 2009.



      _______ _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)                                         AR20090011432



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ABCMR Record of Proceedings (cont)                                         AR20090011432



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