IN THE CASE OF:	  

		BOARD DATE:	    27 May 2010

		DOCKET NUMBER:  AR20090021230 


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 a medical discharge.

2.  The applicant states that he entered the Army as a healthy young man and was injured during week 3 of basic training when he fell.  He says he received physical therapy treatment five times a week that kept him from completing his military training.  Finding civilian employment is challenging for fear of further injuring himself and he is unable to get medical insurance or treatment without paying for it himself.  He states that medical insurance carriers claim his injury is a preexisting condition and will not provide him with insurance.  He concludes by stating he cannot get veterans' medical benefits because of his short time in service.  With a medical discharge, he would be able to seek medical treatment and return to active military service.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 26 August 2009 in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 8 April 2009 for a period of 4 years.  He entered basic combat training at Fort Leonard Wood, MO.

2.  The facts, circumstances, and medical records documenting the applicant's physical condition requiring him to seek medical assistance from a physical therapist at Fort Leonard Wood, MO, are not available for the Board's review.

3.  On 23 July 2009, a physical therapist stated the applicant had developed pain in his right cervical spine and right upper trapezius resulting in a numbing and tingling sensation in his right arm.  This condition prevented him from performing required physical fitness training, lifting heavy weights, and overhead activities without increasing pain.  The physical therapist noted the applicant would recover in 3 to 6 months and that rehabilitation would not occur in a timely manner for the applicant to complete basic combat training.  In conclusion, the physical therapist recommended the applicant be separated under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17.

4.  On 29 July 2009, the applicant stated in a memorandum for record that he would not be able to overcome his deficiencies and waived his right to do so.

5.  On 4 August 2009 and again on 8 August 2009, the applicant was counseled and this counseling was documented on a DA Form 4856 (General Counseling Form).  During the counseling, the applicant was informed that his commander was recommending his separation from active duty under the provisions of paragraph 5-17, Army Regulation 635-200.  The reason for the proposed separation was due to his limiting physical condition preventing him from performing the physical fitness and soldiering tasks required of a basic trainee.  He was advised that his separation would be uncharacterized for he had not completed 180 days of active service.

6.  On 14 August 2009, the applicant initiated his DA Form 2697 (Report of Medical Assessment).  On 18 August 2009, a health care provider authenticated this form stating the applicant had received medical treatment for a shoulder strain.  Subsequently, the applicant, after being advised that he was not required to undergo a medical evaluation for separation from active duty, elected not to receive a separation physical examination.

7.  The applicant's commander notified him on 17 August 2009 that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, paragraph 5-17.  The reason for separation under this paragraph is for other designated physical or mental conditions, not a physical disability.  The commander further specified that the reason for the applicant's proposed separation was the applicant's developing pain in his right cervical spine and right upper trapezium strain.  The commander noted this condition prevented the applicant from performing pushups, lifting heavy weight, and performing overhead activities.

8.  The commander said this medical diagnosis interfered with the applicant's ability to perform his military training.

9.  The commander informed the applicant that: 

* he had the right to counsel and/or a civilian counsel at no expenses to the government
* he could present written statements on his behalf
* he could obtain copies of all documents sent to the separation authority
* he was required to undergo a medical examination in accordance with Army Regulation 40-501 (Standards of Medical Fitness)
* recoupment of the unearned portion of his enlistment bonus was required by law

10.  The applicant declined the opportunity to seek assistance from counsel on 17 August 2009.  He requested a discharge saying he did not wish to submit statements on his behalf, nor did he request copies of the documents that would be sent to the separation authority.

11.  On 20 August 2009, the separation authority approved the recommendation for separation and directed that the applicant be furnished an entry-level (uncharacterized) separation.

12.  On 26 August 2009, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 5-17, due to a physical condition, not a disability.  The applicant's DD Form 214, item 24 (Character of Service) contains the entry "uncharacterized."  He had completed 4 months and 19 days of active service.

13.  References:

	a.  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 medical evaluation board.  Those members who do not meet medical retention standards based on the criteria in Army Regulation 40-501 will be referred to a physical evaluation board for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

	b.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army.  Paragraph 5-17 of this regulation states that commanders may approve separation on the basis of other physical or mental conditions not amounting to disability under the provisions of Army Regulation 
635-40 that potentially interfere with assignment to or performance of military duties.  Such conditions may include, but are not limited to chronic airsickness, chronic seasickness, enuresis, sleepwalking, dyslexia, severe nightmares, claustrophobia, and personality disorders.  Recommendations for separation must be supported by documentation confirming the existence of the physical or mental condition.  Prior to separation, the regulatory notification procedures of chapter 2 will be utilized.

	c.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay.

	d.  Title 10, U.S. Code, section 1203, provides for the physical disability separation with severance pay of a service member who has less than 20 years of service and a disability rated at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been medically separated so he can receive benefits under the Department of Veterans Affairs.

2.  The evidence of record shows the applicant had a condition that prevented him from completing his initial entry training.  He was receiving medical treatment from a physical therapist for his condition with an anticipated recovery period of 3 to 6 months.  As he was in initial entry training without a military occupational specialty, the applicant's chain of command recommended an entry-level separation as he was unable to perform the pushup, lift heavy objects, or perform overhead activities that are required of basic trainees.

3.  Therefore, the separation authority released the applicant after 4 months of initial entry training, but before he completed 180 days of training on active duty.

4.  Based on the evidence of record, the applicant did not have any medically unfitting disability that required physical disability processing.  Therefore, there is no basis for a physical disability (medical) retirement or separation as there was no medical evaluation board.  Without a medical evaluation board, there can be no physical evaluation board to determine physical disability ratings or to recommend separation for a disabling condition.

5.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  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 has failed to submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

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)                                         AR20090021230



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ABCMR Record of Proceedings (cont)                                         AR20090021230



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