BOARD DATE:	  16 September 2010

		DOCKET NUMBER:  AR20100006988 


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 her military records be corrected to show her injuries to her ankles, right shoulder, back, right elbow, and right knee were incurred in the line of duty.  She also requests, in effect, the reason for her discharge be changed to show she was discharged for disability and that the payment she received for her enlistment bonus not be recouped. 

2.  The applicant states her injuries were incurred while on active duty.  Her discharge is coded incorrectly and she is being required to pay back a portion of the enlistment bonus she received.

3.  The applicant provides copies of:

* 11 pages from her service medical records
* two DA Forms 3349 (Physical Profile), dated 16 October 2007 and          28 August 2008
* a DD Form 2697 (Report of Medical Assessment), dated 26 February 2008
* a Standard Form 507 (Clinical Record), date 16 April 2008
* a letter, dated 24 April 2008, from Lisa V_______e, MD
* a letter, dated 20 May 2008, from Kevin S_______r, DPM
* her discharge orders
* her letter, dated 11 November 2009, to her Congressional representative
* two letters, dated 10 December 2009 and 4 December 2009, from the Defense Finance and Accounting Service (DFAS)
* an additional statement, dated 30 April 2010, from the applicant
CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel records show she enlisted in the U.S. Army Reserve (USAR) on 12 February 2007 for a period of 8 years.  She enlisted for training in the military occupational specialty (MOS) of 68D (Operating Room Specialist).  She was entitled to a Non-Prior Service Enlistment Bonus in the amount of $8000, 50 percent of which was to be paid upon completion of her initial active duty for training and qualifying in the MOS.  

2.  The applicant was ordered to initial active duty for training (IADT) effective 
10 July 2007 for completion of basic and MOS training.  

3.  The medical records submitted by the applicant show she was treated for ankle pain on 8 August 2007.  She was seen on 24 August 2007 for her ankles, right knee, and upper back.  On 15 October 2007, she was seen at the Brooke Army Medical Center for hip pain elicited by motion, bilateral ankle pain, and right ankle pain for the last 3 months.

4.  On 16 October 2007, the applicant was placed on temporary profile for bilateral ankle sprain.  Assignment limitations resulting from this physical profile were no running, marching, or jumping.  She was given a soft shoe profile.  Under "L" (lower extremities) of the physical profile the applicant was assigned the numerical designator "3."

5.  On 29 February 2008, the applicant was released from active duty and returned to her unit.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 29 February 2008 shows she was released by reason of her completion of her period of ADT (active duty for training) and she was awarded MOS 68D.  She had completed 7 months and 21 days of active service that was characterized as honorable.

6.  A letter, dated 24 April 2008, from Lisa V______e, MD stated she saw the applicant on 4 March 2008 for injuries the applicant stated she suffered during basic training in the Army.  The applicant stated she fell in a hole while marching and others fell on her causing immediate ankle and right shoulder pain.  She finished the march.  The doctor stated that her examination found the applicant had pain throughout the range of motion of her shoulder, a positive Hawkins, and tenderness at the bicipital groove, consistent with rotator cuff tendonitis and possible rotator cuff tear.  The doctor stated if she did not improve with therapy she would need a magnetic resonance imaging and surgical consideration.  


7.  Dr. V_______e also examined the applicant's ankles and found persistent swelling of the ankles and she had recurrent inversion injuries since her fall due to chronic ankle instability which worsened her pain.  She had edema of both of her lateral ankles and was tender over the anteriod talofibular ligaments of both ankles.  There was also 2+ instability of both ankles with inversion.  She stated the Army evaluated her for this but never received any rehabilitation.  The doctor stated that due to a lack of timely rehabilitation she was not optimistic that there would be any significant improvement in her ankle instability or pain.  The doctor stated the applicant would not be able to meet the physical demands of the Army in the future because of this injury.

8.  A letter, dated 20 May 2008, from Kevin S_______r, DPM stated he examined the applicant on three separate occasions beginning with 24 April 2008.  He states his initial examination of the applicant showed significant paresthesias at the plantar aspect of both feet as well as the dorsal aspect of both feet indicative of potential nerve-related pathology.  He stated she has pain and tenderness at the common peroneal nerve on both sides as well as a positive tinel's sign of the medial plantar nerve bilateral.  The doctor stated that any long term evaluation as to her status is difficult to ascertain at this point in time, especially since these symptoms may resolve over the next few months.  The doctor stated that in conjunction with the lateral ankle instability it was his estimation that she would have difficulty with the physical demand of her Army duties.

9.  On 24 August 2008, the applicant was placed on permanent profile for bilateral chronic ankle pain and instability and right shoulder pain.  Assignment limitations resulting from this physical profile were no running, marching, or jumping.  She was given a soft shoe profile.  Under "U" (upper extremities) of the physical profile the applicant was assigned the numerical designator "3" and under "L" (lower extremities) of the physical profile she was assigned the numerical designator "4."  The profile also stated she was medically disqualified and did not meet the Army Medical Retention Standards in accordance with Army Regulation 40-501, paragraph 3-14.  The profile referred the applicant to a Non-Duty Related Physical Evaluation Board (NDR-PEB).  The results of the NDR-PEB are not available for review.  The profile was approved by the Office of the Army Reserve-Medical Command Surgeon on 28 August 2008.

10.  Headquarters, Army Reserve Medical Command, Pinellas Park, FL Orders 08-254-00113, dated 10 September 2008, discharged the applicant from the USAR effective 9 October 2008.  In additional instructions it is noted "medical discharge - no disability."

11.  In her letter, dated 11 November 2009, to her Congressional representative, the applicant stated she was being required to pay back part of the enlistment bonus she received due to the reason for her discharge.  

12.  The letters from DFAS, dated 4 and 10 December 2009, indicate a portion of the applicant's enlistment bonus is being recouped because she was discharged prior to her completing the required amount of service.

13.  In a statement, dated 30 April 2010, the applicant says she was told there was a pregnancy code attached to her DD Form 214.

14.  In the processing of this case an advisory opinion, dated 14 July 2010, was 
provided by the Chief, Operations Line of Duty, U.S. Army Human Resources Command (HRC).  The applicant was provided a copy of this opinion and given 30 days to submit matters in rebuttal; however, no response has been received.

15.  HRC stated the applicant's unit commander at the time of her active duty failed to initiate an informal line of duty.  HRC has the authority to provide administrative relief by issuing a presumptive line of duty finding for her injuries received while serving on active duty.  HRC determined the applicant's injuries to her ankles, right shoulder, right knee, right elbow, and back were incurred in the line of duty.

16.  References:

	a.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army Physical Disability Evaluation System, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or the proximate cause was incurred while performing active duty or inactive duty training.

	b.  Army Regulation 635-40 provides, in pertinent part, 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 (MEBD).  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  
	c.  Army Regulation 635-40 states, in pertinent part, that when a commander or other proper authority believes that a Soldier not on extended active duty is unable to perform the duties of his or her grade or rank because of physical disability, the commander will refer the Soldier for medical evaluation according to Army Regulation 40-501.

	d.  Army Regulation 40-501, in Chapter 7 (physical profiling), provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of a Soldier and is used to assist commanders and personnel officers in their determination of what duty assignments the Soldier is capable of performing and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors: P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric (PULHES).  

		(1)  Numerical designator 1 under all factors indicates that a Soldier is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  

		(2)  Numerical designators 2 and 3 indicate that a Soldier has a medical condition or physical defect which requires certain restrictions in assignment within which the Soldier is physically capable of performing military duty.  The Soldier should receive assignments commensurate with his or her functional capacity.  

		(3)  Numerical designator 4 indicates that a Soldier has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator 4 does not necessarily mean that the Soldier is unfit because of physical disability as defined in Army Regulation 635-40.

	e.  Army Regulation 600-8-4 provides that a line of duty investigation must be conducted in all cases of injury not as a result of enemy action.  It also provides it is essential to arrive at a determination as to whether misconduct or negligence was involved in the disease, injury, or death and, if so, to what degree.  Depending on the circumstances of the case, an investigation may or may not be required to make this determination.  It provides that any physical condition having its inception in line of duty during one period of service or authorized training in any of the Armed Forces which recurs or is aggravated during later service or authorized training, regardless of the time between, should be in line of duty.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the injuries she suffered while on active duty should be determined to be incurred in line of duty.  She also contends the reason for her discharge should be changed so she doesn't have to pay back a portion of her enlistment bonus.  She also contends her DD Form 214 contains a code indicating she was discharged due to pregnancy.

2.  A review of the applicant's DD Form 214 did not show any reference to a separation for pregnancy.  Her DD Form 214 shows she was separated by reason of completion of her period of ADT.

3.  A line of duty investigation should have been initiated when the applicant was placed on a permanent profile and deemed as not meeting the Army Medical Retention Standards based on the injuries she received on active duty for training.

4.  HRC has now determined the injuries the applicant incurred on active duty were incurred in line of duty.  

5.  The applicant should now be afforded the opportunity to have her medical fitness determined by a MEBD and a PEB if appropriate.  If a PEB finds her to be unfit, action will be taken to discharge her by reason of disability.  A discharge by reason of disability will not require a recoupment of her enlistment bonus and will provide for reimbursement of any payments she has already made.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__x____  ____x___  __x______  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by offering her the opportunity to undergo an MEBD to determine her fitness for retention in the Army:
	a.  by directing the Office of The Surgeon General to contact her and arrange, via appropriate medical facilities, an MEBD; and

	b.  if appropriate, by referral to an informal PEB.

2.  The Office of The Surgeon General is directed to use appropriate invitational travel orders to accomplish the MEBD and, if necessary, the PEB.

3.  In the event that a formal PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of her case by a formal PEB.  All required reviews and approvals will be made subsequent to completion of the formal PEB.

4.  In the event a PEB finds the applicant has a medically unfitting condition that is compensable, action will be taken to separate her as appropriate.  In addition, action will be taken to cancel the recoupment of her enlistment bonus and provide for reimbursement of payments she has already made.

5.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to a discharge for disability and recoupment of her enlistment bonus until such time a MEB/PEB makes a determination.  




      _______ _  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)                                         AR20100006988



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceeding