IN THE CASE OF:	  

		BOARD DATE:	  2 March 2010

		DOCKET NUMBER:  AR20090016081 


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, a medical discharge with entitlement to severance pay.

2.  The applicant states, in effect, that an injustice and error occurred in his separation from the service.  He was cleared through medical doctors when he joined the Army with no notation of pre-service disability.  The injury he suffered in the service caused him to be medically boarded out and occurred to an area that had been well healed and 100 percent functioning.  He realized this was wrong after researching for Department of Veterans Affairs (DVA) information.  The injury has never fully healed and has been granted a service-connected disability rating by the DVA.   

3.  In support of his application, the applicant provides a copy of his DVA Rating Decision.

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.  The applicant’s military records show he enlisted in the Delayed Entry Program on 29 January 1991.  He enlisted in the Regular Army in pay grade E-1 on 21 February 1991, for 4 years.

3.  On 14 March 1991, the applicant was assigned a temporary profile of 113111 for left ankle pain.  The profile noted that he was undergoing an Entrance Physical Standards Board (EPSBD) and prohibited further duty for training purposes. 

4.  On 14 March 1991, an EPSBD convened and considered the applicant’s diagnosis of a painful left ankle, secondary to an EPTS fracture of the left ankle with open reduction and internal fixation.  The board proceedings show the applicant complained of a painful, swollen left ankle since his arrival at the Reception Station approximately two weeks ago and he had stated that he was unable to run, walk long distances, march, or jump without excessive pain in his left ankle.  The applicant gave the history of an open reduction and internal fixation of the left ankle at approximately 15 years of age due to a fracture of his left ankle.  He had subsequent removal of the hardware at a later date.  The board found that he was medically unfit for enlistment in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraph 2-10a(3)(a) and recommended he be separated from the service for the EPTS condition.  

5.  On 1 April 1991, the applicant concurred with the EPSBD's findings and requested discharge from the Army without delay.

6.  On 1 April 1991, the unit commander recommended the applicant be separated from the Army.  Accordingly, the separation authority approved the applicant's discharge and directed he be separated from the Army.

7.  The applicant was discharged from active duty in pay grade E-1 on 4 April 1991, under the provisions of Army Regulation 635-200, paragraph 5-11, by reason of failure to meet procurement medical fitness standards – no disability.  He had completed 1 month and 14 days of total active service.  

8.  The applicant provided a copy of his DVA Rating Decision, dated 11 March 2009, that shows he was awarded a 20 percent service-connection disability for a left ankle fracture.

9.  Army Regulation 635-200 (Enlisted Personnel Separations) provides the basic authority for the separation of enlisted personnel.  Paragraph 1-24(2)(c) specifies that if a Soldier is discharged for disability, he/she will be entitled to severance pay.  Paragraph 5-11 specifically provides that Soldiers who are not medically qualified under procurement medical fitness standards, when accepted for enlistment, or who became medically disqualified under these standards prior to entry on active duty or active duty training or initial entry training will be separated.  A medical proceeding, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within 6 months of the Soldier’s initial entrance on active duty, that the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at that time, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501, Chapter 3.  The characterization of service for Soldiers separated under this provision of regulation will normally be honorable, but will be uncharacterized if the Soldier is in an entry-level status.  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.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, United States Code (USC) , Chapter 61, (10 USC 61) and Department of Defense Directive 1332.18.  It 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 his or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  Soldiers are referred into the PDES system when they no longer meet medical retention standards in accordance with Army Regulation 40-501, Chapter 3. 

11.  Title 38, USC, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  The DVA has neither the authority nor the responsibility for determining physical fitness for the military service.  It awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  

12.  A common misconception is that veterans can receive both a military retirement for physical unfitness and a DVA disability pension.  By law, a veteran can normally be compensated only once for a disability.  If a veteran is receiving a DVA disability pension and the ABCMR corrects the records to show that a veteran was retired for physical unfitness, the veteran would have to choose between the DVA pension and military retirement.

13.  Title 10, USC, section 1212(c), states the amount of disability severance pay received shall be deducted from any compensation for the same disability to which the former member becomes entitled under any law administered by the DVA.  Thus, DVA compensation may be withheld as an offset on a monthly basis until the total amount of military severance pay has been recovered.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant enlisted in the Regular Army on 21 February 1991.  Approximately 2 weeks later he complained of a painful, swollen left ankle.  On 14 March 1991, an EPSBD convened to consider his complaint.  The evidence substantiated his EPTS condition and that his injury occurred as a result of a fracture to his left ankle when he was approximately 15 years of age.  The EPSBD found him medically unfit for enlistment and his condition EPTS and recommended his separation from the Army.

2.  The applicant concurred with the findings of the EPSBD and requested immediate discharge from the Army.  Since the applicant's medical condition was not medically unfitting for retention at the time in accordance with Army Regulation 40-501 even though it was disqualifying for enlistment, there was no basis for medical retirement or separation with severance pay.

3.  The disposition of Soldiers who are found not to meet the Army's procurement medical fitness standards is through administrative separation and not through the Army's PDES and as such they are not entitled to severance pay.  As such, the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  No evidence of arbitrary or capricious actions by the command was found.  It appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

4.  The DVA rating decision provided by the applicant was also carefully considered.  However, the award of a DVA rating does not establish entitlement to a medical discharge and/or medical retirement.  Operating under its own policies and regulations, the DVA awards ratings because a medical condition is related to service, i.e., service-connected.  In this case, the applicant was properly evaluated and is being compensated for his service-connected medical conditions by the DVA; however, there is no indication the applicant suffered a disabling condition while in a qualifying duty status that would have supported his processing for retirement through medical channels; therefore, there is an insufficient evidentiary basis to support granting the applicant’s request.  

5.  In addition, any disability severance pay awarded by the Army to a Soldier would be deducted from any DVA compensation awarded to him or her.  

6.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this 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.




      _______ _   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)                                         AR20090016081





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ABCMR Record of Proceedings (cont)                                         AR20090016081



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