BOARD DATE:	  4 November 2010

		DOCKET NUMBER:  AR20100012213 


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.  She states she feels she received the wrong discharge because she was injured while on duty.  She believes that chapter 13 does not pertain to the conditions she has and she should have received a medical discharge.

3.  She provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show she enlisted in the Delayed Entry Program on 8 May 2009.  She enlisted in the Regular Army in pay grade E-2 on 18 June 2009 for 4 years.  She did not complete advanced individual training and was not awarded a military occupational specialty.

2.  A 37th Medical Group Form 3530 (37th Training Wing Temporary Duty Restriction Form), dated 26 October 2009, shows she was recommended for an entry-level separation.

3.  On 13 January 2010 after undergoing a mental health evaluation, she was cleared for separation.

4. On 14 January 2010, she received counseling pertaining to her separation under the provisions of chapter 13, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations).  On the same day, a DA Form 268 (Report to Suspend Favorable Personnel Actions) was initiated against her for elimination.

5.  There is no evidence she was referred to a medical evaluation board (MEB) or a physical evaluation board (PEB) for consideration of her chronic knee inflammation or any medical condition(s) during her period of active duty.

6.  On 20 January 2010, the applicant's company commander initiated action to separate her from the service under the provisions of Army Regulation 635-200, chapter 13.  The company commander stated the applicant was unable to perform her military duties due to an existing medical condition.  She was seen at both the Reid Medical Clinic and Brooke Army Medical Center for chronic knee inflammation and he felt it was in the best interest of the Army to allow the applicant to be separated from active duty with an honorable discharge.  The company commander did not state that she was an unsatisfactory Soldier.

7.  On 20 January 2010 after waiving her right to counsel, she acknowledged the proposed separation action for unsatisfactory performance.  She waived her rights and elected not to submit a statement in her own behalf.  She also stated she did not desire retention on active duty to complete any medical evaluations/profiles.

8.  On 21 January 2010, the appropriate authority approved her honorable discharge.

9.  She was honorably discharged from active duty in pay grade E-2 on 25 January 2010 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  She was credited with 7 months and 8 days of net active service.

10.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel for a variety of reasons.  Chapter 13 applies to separation for unsatisfactory performance when it is clearly established that the Soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  The characterization of service will be honorable or general as warranted by the Soldier's military records.

11.  Army Regulation 635-200, chapter 5 (Separation for Convenience of the Government), paragraph 5-17, applies to separation on the basis of other physical or mental conditions not amounting to disability under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that potentially interfere with assignment to or performance of duty.

12.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It states an MEB will be 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 Army Regulation 
40-501 (Standards of Medical Fitness), chapter 3.

13.  Army Regulation 40-501, chapter 3, provides that for the separation of an individual found to be unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank, or rating.  Members with conditions as listed in this chapter are considered medically unfit for retention on active duty and are referred for disability processing.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant's commander recommended her separation based on her inability to perform her military duties due to an existing medical condition, chronic knee inflammation.  Chapter 13 provides for the separation of Soldiers whose unsatisfactory performance clearly demonstrates that the Soldier will not develop sufficiently or become a satisfactory Soldier.  There is no evidence she was declared an unsatisfactory Soldier.

2.  Based on the foregoing, it would now be appropriate to correct her records to show she was honorably discharged from active duty under the provisions of Army Regulation 635-200, paragraph 5-17, for other designated physical or mental conditions.

3.  There is an absence of evidence to support her contentions for entitlement to a medical discharge.  There is no evidence she was found to be unfit by reason of physical disability during her period of active duty.  There is also no evidence she was referred to an MEB or a PEB for consideration of any medical condition(s) prior to her discharge.  She acknowledged the reason for her separation and stated she did not desire to be retained on active duty to complete any medical evaluations or profiles.

4.  She has submitted neither probative evidence nor a convincing argument to show her medical conditions amounted to a disability separation under the provisions of Army Regulation 635-40.  Therefore, she is not entitled to a medical discharge.

5.  In view of the foregoing, her records should be corrected as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x__  __x______  ___x_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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 showing the applicant was honorably separated from the service on 25 January 2010 under the provisions of Army Regulation 635-200, paragraph 5-17, for other designated physical or mental conditions and by providing her a corrected separation document.

2.  The Board further determined 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 showing she was separated from the service with a medical discharge.



      _________________________
                 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)                                         AR20100012213



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ABCMR Record of Proceedings (cont)                                         AR20100012213



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