IN THE CASE OF:	

		BOARD DATE:	  09 March 2010

		DOCKET NUMBER:  AR20090013324 


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 the Board's denial of his request for a medical discharge.

2.  The applicant states that his enlistment was not defective as defined by the applicable regulation.  Recruiting personnel did not materially misrepresent anything and there was no administrative oversight or error on the part of recruiting personnel.  However, while the Army only provided him with Motrin, physical profile limitations, crutches, x-rays, and bone scans, the Department of Veterans Affairs (VA) provided him with magnetic resonance imaging (MRI), surgery, rehabilitation, specific medications for the injuries incurred, and disability ratings.  Therefore, he was not provided proper medical care by the Army for his injuries.  In addition, the medical records from the VA show that he was not able to reasonably perform the duties of his office, grade, rank, or rating, the prerequisite for a medical discharge.

3.  The applicant does not provide any additional documents in support of his request.

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 AR20080015102 on 16 December 2008.

2.  The applicant provides new argument which requires that the Board reconsider his request.

3.  The available evidence of record shows the applicant enlisted in the Regular Army for the U.S. Army Officer/Warrant Officer Enlistment Program on 19 July 2006.

4.  The applicant's service medical records show that upon starting basic training he complained of left shoulder pain.  The left clavicle was tender on palpation and there was mild crepitus.  He was treated with anti-inflammatory drugs and cold treatments.  An MRI revealed compression arthralgia of the acromio-clavicular joint most likely due to prior repetitive trauma.

5.  After arriving at Fort Benning, GA, to begin Officer Candidate School (OCS), the applicant complained of left knee pain occurring with no specific injury to the knee.  On 30 October 2006, he was placed on a temporary physical profile until 29 November 2006.  On 14 November 2006, he was placed on a temporary physical profile until 31 December 2006.

6.  On 11 December 2006, the applicant voluntarily requested discharge in accordance with the OCS Commandant's policy and under the provisions of Army Regulation 350-51 (U.S. Army OCS) because he could not complete training.  He was injured during training and could not complete training due to his injuries.  He was placed on a physical profile and recovery time of 30 or more days which was the cause of relief from the program.

7.  On 11 January 2007, the separation authority approved the applicant's discharge.  On 19 January 2007, the applicant was honorably discharged under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 7, section III, by reason of defective enlistment agreement.  He was credited with 6 months and 1 day of active duty service.

8.  The applicant underwent surgery on his left knee and left shoulder in August 2008 at the Southern Arizona Veteran's Affairs Hospital Center.

9.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 7-16 stipulated, in pertinent part, that a defective enlistment agreement existed when the Soldier was eligible for enlistment in the Army but did not meet the prerequisites for the option for which enlisted.  This situation existed when the following occurred:

	a.  a material misrepresentation by recruiting personnel, upon which the Soldier reasonably relied, resulting in the Soldier being induced to enlist for that option;

	b.  an administrative oversight or error on the part of the recruiting personnel, in which the Soldier did not knowingly take part, in failing to detect that the Soldier did not meet all the requirements for the enlistment commitment;

	c.  action when discovered during processing or training; or 

	d.  an unfulfilled enlistment commitment.  An unfulfilled enlistment commitment existed when the Soldier received a written enlistment commitment from recruiting personnel for which the Soldier was qualified but which could not be fulfilled by the Army through no fault of the Soldier.

10.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 2, paragraph 2-2, states that the purpose of the standards contained in this chapter is to ensure that individuals medically qualified are:

	a.  free of contagious diseases that would likely endanger the health of other personnel,

	b.  free of medical conditions or physical defects that would require excessive time lost from duty for necessary treatment or hospitalization or would likely result in separation from the Army for medical unfitness,

	c.  medically capable of satisfactorily completing required training,

	d.  medically adaptable to the military environment without the necessity of geographical area limitations, and

	e.  medically capable of performing duties without aggravation of existing physical defects or medical conditions.

11.  Army Regulation 40-501, chapter 3, paragraph 3-1, states that this chapter provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individuals with conditions listed in this chapter who do not meet the required medical standards to be evaluated by a medical evaluation board (MEBD) as defined in Army Regulation 40-400 (Patient Administration) and to be referred to a physical evaluation board (PEB) as defined in Army Regulation 
635-40 (Physical Evaluation for Retention, Retirement, or Separation).

12.  Title 38, U.S. Code, permits the VA to provide medical treatment and 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.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence that the applicant was determined or should have been determined disqualified under medical retention standards.  As such, he was not eligible to be considered by an MEBD or PEB and could not have been given a medical discharge.

2.  The applicant had injuries which, while not medically disqualifying for retention, precluded him from completing OCS.  The length of time required to repair the injuries precluded the applicant from completing OCS.  Since OCS was one of the applicant's enlistment options, he was given the opportunity to request discharge due to defective enlistment.

3.  The VA is empowered by law to provide medical care and compensation for service-related medical conditions.  The applicant has provided documents to show that the VA has provided the appropriate medical treatment and compensation to the applicant.

4.  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 to amend the decision of the ABCMR set forth in Docket Number AR20080015102, dated 16 December 2008.



      __________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)                                         AR20090013324



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ABCMR Record of Proceedings (cont)                                         AR20090013324



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