IN THE CASE OF:	  

		BOARD DATE:	  29 December 2010

		DOCKET NUMBER:  AR20100011876 


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 correction of his records to show he was honorably discharged for medical reasons. 

2.  The applicant states he would like his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect the fact that he was medically discharged.  His DD Form 214 was issued as a temporary document pending the results of a medical board.  It even says as much in item 18 (Remarks).  As far as he is concerned, all that the form needs is to have the narrative reason for separation changed and maybe to have the Remarks section include any relevant data regarding his involuntary separation for disability, rated at 20% and any other pertinent information.

3.  The applicant provides:

* DD Form 785 (Record of Enrollment from Officer Candidate - Type Training)
* Form 214
* Line of Duty Determination
* Physical Disability Separation Memorandum
* U.S. Army Physical Disability Agency (USAPDA) discharge orders
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* Administrative relief from training memorandum
* Orders releasing him from his training unit


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 record shows he enlisted in the U.S. Army Reserve (USAR) on 10 June 2006 for a period of 8 years.  He was subsequently issued official orders ordering him to active duty for training (ADT) for completion of basic combat training and Officer Candidate School (OCS).  The orders instructed that upon completion of the period of ADT, unless sooner relieved or extended by proper authority, he would return to the place he entered ADT.

3.  He entered ADT on 20 July 2006 and was initially attached to the 1st Battalion, 46th Infantry, 1st Armor Training Brigade, Fort Knox, KY, where he completed basic training and he was reassigned on 29 September 2006, and further attached to the 3rd Battalion, 11th Infantry, Fort Benning, GA, for completion of OCS. 

4.  On 12 October 2006, he sustained a right compressive-sided femoral neck fracture during training.  His DA Form 2173, prepared by the patient administrator and approved by the unit commander on 12 October 2006, shows he conducted numerous organized runs, foot marches, and obstacles while assigned to OCS which may have induced his present injuries.  He was seen at Martin Army Community Hospital, Fort Benning, GA, and was issued a temporary restrictive physical profile. 

5.  On 18 October 2006, by memorandum, the applicant's immediate commander recommended the applicant be administratively relieved from OCS and indicated the applicant had a right leg injury that would have prevented him from completing OCS at the time.  Additionally, the immediate commander initiated a DD Form 785 wherein the applicant was advised that he could request reinstatement to OCS once the medical disqualification was removed.  He further indicated that the applicant was recommended for future reenrollment if physical defects were corrected.
6.  On 18 October 2006, his battalion commander approved the applicant's administrative relief from the course for medical reasons and indicated he would be eligible to attend at a later date.

7.  He was honorably released from ADT on 19 October 2006 to the control of his USAR unit, under the provisions of chapter 4 of Army Regulation 635-200 (Personnel Separations) by reason of completion of his required active service. His DD Form 214 shows he completed 2 months and 29 days of creditable active service.  Item 26 (Separation Code) shows the entry "MBK" and item 28 (Narrative Reason for Separations) shows the entry "Completion of Required Active Service).  Item 18 contains an entry showing he was separated from the service on temporary records.

8.  Subsequent to his release from active duty, he was assigned to the 5th Battalion, 159th Aviation Regiment, Fort Eustis, VA.

9.  On 6 February 2007, by memorandum, an official at Fort Eustis, VA, indicated the applicant's injury was determined to be in line of duty.

10.  A narrative summary (NARSUM), dictated on 11 July 2008, shows he developed problems with his right hip during OCS and that workup ultimately showed a right compressive-sided femoral neck stress fracture.  Subsequent to his honorable release from active duty, he followed up with a civilian orthopedic in Atlanta, GA, and had pin placement in the neck of the right femur.  He had reached the point where he was essentially ambulatory.  He walked with a cane and continued to complain of pain.  The attending physician indicated the applicant failed to meet retention criteria of paragraph 3-14b of Army Regulation 40-501 (Standards of Physical Fitness) and recommended his entry into the physical disability evaluation system (PDES).  

11.  On 18 July 2008, a medical evaluation board (MEB) convened at Ireland Army Community Hospital, Fort Eustis, VA, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable condition of right hip pain and the medically-acceptable conditions of back pain and shin splints.  The MEB recommended he be referred to a physical evaluation board (PEB).  He did not agree with the MEB's findings and recommendation and submitted an appeal (not available for review).  His appeal was considered but the original findings and recommendations were affirmed. 

12.  On 17 February 2009, a formal PEB convened at Fort Lewis, WA, and found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to:

	a.  Degenerative arthritis - residual right hip pain after a stress fracture of the femoral neck with subsequent hardware removal; imaging showed complete healing of the fracture but hip pain never resolved and increased pain impacted functional military duties; and 

	b.  Lumbar strain/chronic low back pain developed during convalescence from his problems.  

13.  He was rated under the Veteran Affairs Schedule for Rating Disabilities (VASRD), and he was awarded a 10% disability rating for code 5010 (Arthritis, degenerative) and a 10% disability rating for code 5237 (Lumbar Strain) for a combined disability rating of 20%.  The PEB recommended that the applicant be separated with entitlement to severance pay if otherwise qualified.  The applicant elected not to concur; however, it appears the PEB reviewed his rebuttal but affirmed the findings and recommendations.  His PEB was ultimately approved on behalf of the Secretary of the Army on 4 March 2009.

14.  On 4 March 2009, by memorandum, the USAPDA authorized his discharge from the USAR with entitlement to severance pay, and on the same date USAPDA published Orders D063-08 discharging him from the USAR effective 8 April 2009 with entitlement to severance pay based on his grade and 4 months and 5 days of active service.

15.  Army Regulation 635-5-1 (Separation Program Designator Codes) states the Separation Program Designator (SPD) codes are three-character alphabetic combinations which identify reasons for, and types of, separation from active duty.  The SPD code of "MBK" is the correct code for Soldiers released from active duty for completion of required active service under the provisions of chapter 4, Army Regulation 635-200.  

16.  Army Regulation 635-40 establishes the Army 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 office, grade, rank, or rating.  It provides for MEBs, 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.

17.  Army Regulation 635-40, paragraph 3-7, states that a Soldier whose normal scheduled date of non-disability retirement or separation occurs during the course of hospitalization or disability evaluation may, with his or her consent, be retained in the service until he or she has attained maximum hospital benefits and completion of disability evaluation if otherwise eligible for referral into the disability system. 

18.  Army Regulation 135-178 in effect at the time, established the policies, standard, and procedures governing the administrative separation of enlisted Soldiers from the Reserve Components (RC).  Chapter 3 states discharge will be accomplished when it has been determined that an enlisted member is no longer qualified for retention by reason of medical unfitness unless the member requests and is granted a waiver or is eligible for transfer to the Retired Reserve. RC members who do not meet the medical fitness standards for retention due to a condition incurred while on active duty, any type of active duty training, or inactive duty training will be processed as specified in Army Regulation 635-40.  

19.  Army Regulation 135-381, paragraph 7-2, requires reservists who are eligible for retention on active duty due to a physical disability to submit an affidavit requesting retention on active duty.  This affidavit must be submitted prior to a reservist’s release from active duty, must be endorsed by the Medical Treatment Facility (MTF) commander, and must be approved by the commander exercising general court-martial authority.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant, an RC Soldier, suffered a medical condition during ADT that led to his administrative release from OCS.  The medical condition did not cause him to fail retention standards in the Army; it simply led to disenrollment from OCS.  While on ADT, he did not enter the PDES. Therefore, he was not considered by an MEB or a PEB.  Without a PEB, he could not have been issued a medical discharge or separated for physical disability.  Accordingly, he was honorably released from active duty on 19 October 2006 by reason of completion of his required service.

2.  Item 18 of his DD Form 214 does not indicate the DD Form 214 was a temporary document.  It merely shows that he was separated on temporary records.

3.  Subsequent to his release from active duty, he sought treatment through a civilian orthopedic and his stress fractured appears to have healed.  However, although imaging showed complete healing of the fracture, his hip pain was not resolved and may have worsened.  He underwent a medical examination in May 2008 and, at that stage, it was determined his condition did not meet retention standards.  

4.  Accordingly, he was considered by an MEB that referred him to a PEB.  The PEB found his medical condition prevented him from performing his duties and determined he was physically unfit for further military service.  The PEB recommended separation with entitlement to severance pay.  He was ultimately discharged from the USAR on 8 April 2009 by reason of medical disability.

5.  The applicant's physical disability evaluation was conducted in accordance with law and regulations.  There is no error or injustice in this case.  His DD Form 214 properly shows he was released from active duty by reason of completion of required active service and his USAR discharge order properly shows he was discharged for medical disability.  In view of the foregoing evidence, he is not entitled to the requested 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)                                         AR20100011876



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100011876



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1