IN THE CASE OF:	  .

		BOARD DATE:	  26 January 2010

		DOCKET NUMBER:  AR20100000733 


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 change of the narrative reason for her separation on her DD Form 214 (Certificate of Release or Discharge from Active Duty) from "completion of required active service" to "medical."

2.  The applicant states that she was injured and hospitalized during her active service.

3.  The applicant provides a copy of her DD Form 214 for the period ending
17 April 1999; copies of her Record of Inpatient Treatment form, dated 5 and
27 August 1998; and a copy of her Standard Form 513 (Medical Record - Consultation Sheet), dated 6 August 1998, in support of her request.

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 records show she enlisted in the U.S. Army Reserve (USAR) for a period of 8 years on 23 December 1997.  She entered active duty for training (ADT) on 26 May 1998 and she was assigned to Fort Jackson, SC, for completion of basic combat and advanced individual training for military occupational specialty (MOS) 71L (Administrative Specialist).

3.  On 22 July 1998, the applicant injured her left ankle after she fell while negotiating an obstacle course during BCT.  She was admitted to Moncrief Army Community Hospital, Fort Jackson, where she was determined to have sustained a markedly displaced left distal tibia fracture and fibula fracture.  She was splinted that day and kept on strict ice and elevation treatment for 5 days until her swelling decreased.

4.  On 27 July 1998, she underwent open reduction and internal fixation of her fibula fracture with closed reduction and external fixation of her distal tibia fracture.  She was again kept on strict ice and elevation postoperatively until 5 August 1998 when she underwent crest bone graft to the distal medial tibia.  She again did well without any significant complications medically.  Her pin sites healed well and she was instructed on self-care of her pins.  She was doing a good job at the time of discharge on 17 August 1998.  Her problem during admission was more of pain control and compliance with rehabilitation.  At the time, she refused to do the required physical therapy including touch-weight bearing on crutches and moving her toes to increase blood flow and decrease swelling.

5.  On 17 August 1998, upon her discharge from the hospital, all the staples had been removed from her incision and the swelling was markedly decreased to almost normal.  Her pin sites were healthy with no symptoms of infection and she had been doing her own pin care for well over 10 days.  Additionally, during her stay, a psychiatry consult was ordered because of her non-compliance and pain control issues and multiple social history issues that had arisen during her stay, but she refused to talk to the psychiatrist.

6.  She was released to her unit on a 30-day convalescent leave in a touch-weight bearing status to continue her pain care as instructed.  She was also given oral medication to cover her 30 days of leave.  Her injury was determined to be in the line of duty.

7.  On 8 February 1999, the applicant was reassigned to another BCT unit where she successfully completed BCT.  She went on to AIT on 12 March 1999 and she successfully completed AIT and awarded MOS 71L MOS on 17 April 1999.

8.  She was honorably released from ADT to the control of her USAR unit, 3rd Personnel Command, Jackson, MS, on 17 April 1999.  The DD Form 214 she was issued shows she completed 10 months and 22 days of creditable active service.  Item 28 (Narrative Reason for Separation) of this form shows the entry "Completion of Required Training."

9.  On 18 April 2000, the applicant was released from the 3rd Personnel Command, Jackson, MS, and reassigned to the USAR Control Group (Reinforcement) as an unsatisfactory participant.

10.  On 30 July 2004, the applicant was ordered to active duty in support of Operation Iraqi Freedom.  She reported to the mobilization site at Fort Jackson on 11 September 2004.  However, she was determined to be not medically qualified for deployment and accordingly released from active duty on 25 September 2004. 

11.  On 27 December 2005, the applicant was honorably discharged from the USAR.

12.  There is no indication in the applicant's service records that she was issued a permanent physical profile that restricted her duties and/or assignments or warranted her referral to the Physical Disability Evaluation System (PDES).  Additionally, there is no indication that she underwent a medical evaluation board (MEBD) or physical evaluation board (PEB).

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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 his or her 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 (Standards of Medical Fitness).  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

14.  Army Regulation 40-501 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 Veteran's Administration Schedule for Rating Disabilities (VASRD).  Department of Defense Instruction 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.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her honorable discharge should be changed to a medical discharge.

2.  The evidence of record shows that the applicant injured her left ankle after she fell while negotiating an obstacle course during BCT.  She was subsequently admitted to the hospital, she was treated with surgery and/or medications, and she was returned to her unit.  Upon completion of her convalescence leave, she went on and successfully completed BCT and AIT.  She was then released from ADT to the control of her USAR unit. 

3.  The is no evidence in the available records and the applicant did not provide any evidence that shows she was diagnosed with a medical condition or impairment that restricted her from performing the duties required of her grade or specialty and would have warranted her entry into the PDES.  Therefore, she never underwent an MEBD.  Without an MEBD, there would have been no basis for referring her to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or separated/retired for physical disability.

4.  The purpose of the MEBD is to evaluate the Soldier's medical condition(s) as diagnosed during a medical examination to determine if they do or do not meet the medical retention standards of Army Regulation 40-501, document a Soldier’s medical status and duty limitations, and refer Soldiers to a PEB.  

5.  The PEB is established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and 
recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.  There is no evidence that the applicant was unable to perform her duties subsequent to her treatment and/or recovery.  The Army must find that a Soldier is physically unfit to reasonably perform his/her duties and assign an appropriate disability rating before the Soldier can be medically retired or separated.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement.  The applicant has not shown error, injustice, or inequity for the relief she requests.  Therefore, she 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)                                         AR20100000733



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ABCMR Record of Proceedings (cont)                                         AR20100000733



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