IN THE CASE OF:	  

		BOARD DATE:	  29 March 2011

		DOCKET NUMBER:  AR20100014024 


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 change of her chapter 11 discharge to a medical discharge.

2.  The applicant states she was discharged with stress fractures in her hips and thigh splints.  She contends that while in basic training she asked for a line of duty form so that she could get help at home.  She feels she was misinformed of her medical rights when she was discharged and that she should have been medically discharged with the damages that have been done to her.

3.  The applicant provides her discharge packet, a DA Form 2173 (Statement of Medical Examination and Duty Status), a DA Form 2823 (Sworn Statement), a DD Form 2697 (Report of Medical Assessment), a request for assistance to her Representative in Congress, and a Department of Veterans Affairs (DVA) Rating Decision.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army National Guard (ARNG) on 23 September 2008.  She entered active duty for training (ADT) on 18 November 2008. 

2.  A DA Form 4856 (Developmental Counseling Form), dated 5 January 2009, shows the applicant was counseled by her company commander for her inability to adapt to the military environment due to constantly being "on code" since 

arriving to basic combat training (BCT).  The commander mentioned the applicant had formally notified him in writing that she no longer wanted to be in the Army and she had lost all motivation due to being "on code" for an extended period of time with no possibility of healing.  She was also informed of the commander's intent to initiate separation proceedings in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, for entry level performance and conduct.

3.  In a sworn statement, dated 3 February 2009, she stated that because of the injuries she sustained during basic training, she was refusing to train or accept medical treatment.  She demanded to be discharged from the ARNG and sent home as soon as possible.

4.  A DA Form 4856, dated 5 February 2009, shows she was referred to the Reserve Components Liaison Officer for separation counseling due to failing to adapt and refusing to train since being on profile due to hip stress fractures.  This form reveals that she was recommended by her command to go to the Warrior Training and Rehabilitation Program (WTRP), but she expressed that she did not want to go to WTRP and wanted to go home instead.  This form also shows that she agreed with the contents of the counseling statement.

5.  A DA Form 2173, dated 24 February 2009, indicates that during December 2008, she sustained hip stress fractures while participating in BCT.

6.  On 25 February 2009, her company commander initiated action to separate her from the service under the provisions of Army Regulation 635-200, chapter 11.  The company commander cited as the reason for the proposed separation the applicant's refusal to complete training.  On the same date, she acknowledged the proposed separation action.  She also acknowledged that she had been informed of the rights available to her.  She elected not to submit a statement in her own behalf and she waived her right to consult with counsel and to representation by counsel.  She also elected not to undergo a medical examination prior to separation.

7.  On 25 February 2009, the appropriate authority approved the separation action and on 6 March 2009, she was discharged accordingly.  Her DD Form 214 shows she was separated under the provisions of Army Regulation 635-200, chapter 11 by reason of entry level performance and conduct.

8.  There is no evidence she was referred to a Medical Evaluation Board (MEB) or a Physical Evaluation Board (PEB) for consideration of her medical condition.  

9.  She provided a DVA Rating Decision, dated 15 January 2010, that shows she was granted service-connected disability for hip fractures and lumbar strain with a combined 30 percent (%) disability rating percentage.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of this regulation provides for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry level status.  This provision of regulation applied to individuals who had demonstrated they were not qualified for retention because they could not adapt socially or emotionally to military life, or because they lacked the aptitude, ability, motivation, or self discipline for military service, or they had demonstrated characteristics not compatible with satisfactory continued service.  The separation policy applied to Soldiers who could not meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline.  The regulation required an uncharacterized description of service for separation under this chapter.

11.  Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his office, grade, rank or rating.  Performance of duty despite impairment would be considered presumptive evidence of physical fitness.

12.  Army Regulation 612-201 (Initial Entry/Prior Service Trainee Support), paragraph 8-2, states the WTRP provides a modified basic combat/one station unit training (BCT/OSUT) environment that continues to train and/or educate Soldiers towards initial entry training (IET) graduation while allowing for effective healing and recovery.  It prepares the "whole Soldier" physically and mentally for return to regular training upon successful rehabilitation.  Soldiers should return to BCT/OSUT more physically fit and better trained/educated than when they entered (this is not intended to supplant and/or replace BCT unit training or graduation).  The WTRP maintains the BCT/OSUT environment as closely as possible.  This helps maintain the Soldiers' expectancy that they will return to BCT upon WTRP completion.  The WTRP strengthens and rehabilitates IET Soldiers who have been injured since entry on active duty or who may have a treatable condition that precludes regular training.

13.  Army Regulation 635-40, appendix B (Army Application of the Department of Veterans Affairs Schedule for Rating Disabilities), section I (General rating policies), B-3c (Failure to comply with prescribed treatment) states there are many conditions, such as neuropsychiatric disorders, asthma, hypertension, 

epilepsy, diabetes, and certain injuries which may be improved sufficiently by treatment to prevent disability, or to significantly decrease it.  If a Soldier unreasonably fails or refuses to submit to medical or surgical treatment or therapy, or take prescribed medications, or to observe prescribed restrictions on diet, activities, or the use of alcohol, drugs or tobacco, that portion of the disability that results from such failure or refusal will not be rated where it is clearly demonstrated that:

	a.  the Soldier was advised clearly and understandably of the medically proper course of treatment, therapy, medication or restriction;

	b.  the Soldier's failure or refusal was willful or negligent and not the result of mental disease or a physical inability to comply.

14.  Title 38, U.S. Code, sections 1110 and 1131, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  The DVA, in accordance with its 
own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for DVA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant's commander recommended her separation based on her refusal to complete training.  Evidence of record further shows that she was afforded the opportunity to participate in the WTPR.  However, she expressed that she did not want to go to WTRP and wanted to go home instead which confirms her inability or lack of desire to comply with and/or adapt to the military way of life.

2.  As a result of her refusal to train or accept medical treatment, she was administratively separated in compliance with applicable regulations with no indication of procedural errors which would have jeopardized her rights.

3.  Her records do not show she was suffering from any medically unfitting condition that would have required her to be processed for discharge through medical channels.  In addition, she refused to accept medical treatment.  Such refusal precluded consideration by an MEB which in turn precluded a medical discharge.

4.  The fact that the DVA, in its discretion, awarded her a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20100014024



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ABCMR Record of Proceedings (cont)                                         AR20100014024



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