IN THE CASE OF:	  

		BOARD DATE:	  24 February 2011

		DOCKET NUMBER:  AR20100014140 


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 block 28 (Narrative Reason for Separation) of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she was separated because of a service connected disability and not because of unsatisfactory performance.

2.  The applicant states she was injured during basic training and was transferred to the Physical Training Rehabilitation Program (PTRP) in order to give her injuries time to heal.  She contends that after attending several medical appointments and therapy sessions, she made several painful attempts to pass her physical exam but was still unable to meet the demands.  She was told by a drill sergeant that she would be discharged due to being unable to pass the physical exam.  She explained to the drill sergeant that she was still having tremendous pain in her knees but was making an enormous attempt to pass the physical exam.  The drill sergeant told her that taking a medical discharge would be an obstacle in finding a good job after separation so she decided to take an honorable discharge instead.

3.  The applicant provides a DD Form 214 and a Department of Veterans Affairs (DVA) Rating Decision.

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 enlisted in the Regular Army on 21 March 2001.

3.  A DA Form 4856-E (Developmental Counseling Form), dated 11 May 2001, shows she was transferred to the PTRP because she was injured during training and could no longer train with her unit.  

4.  Additional DA Forms 4856-E show she was counseled on numerous occasions while in the PTRP for Army Physical Fitness Test (APFT) failure.  A DA Form 4856-E, dated 11 September 2001, shows that in addition to the APFT failures, she was counseled for her lack of motivation and failure to adapt to military life.  This form further shows that she had stated she did not want to be in the Army and that she agreed with the contents of the counseling statement.

5.  A Standard Form 600 (Chronological Record of Medical Care), dated 
14 August 2001, indicates that she had been medically cleared for the APFT.

6.  On 4 October 2001, her company commander initiated action to separate her from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13.  The company commander stated that she had failed the APFT on numerous occasions and had shown no improvement in the events she was deficient in.  On the same date, she acknowledged the proposed separation action for unsatisfactory performance.  She elected not to submit a statement in her own behalf and waived her right to consult with counsel and to representation by counsel.

7.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 5 October 2001, indicates that during April 2001, she developed bilateral medial tibial plateau stress fractures while participating in basic combat training.  

8.  On 13 October 2001, the appropriate authority approved the separation action and on 19 October 2001, she was discharged accordingly.  Her DD Form 214 shows she was separated under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance with her service characterized as honorable.

9.  There is no evidence she was referred to a Medical Evaluation Board or a Physical Evaluation Board for consideration of her medical condition.  

10.  She provided a DVA Rating Decision, dated 29 January 2003, showing she was granted service connected disability for right and left medial tibial stress fractures with a combined 20 percent rating.

11.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  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.

12.  Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he 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.

13.  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 applicant's contention and supporting documents have been carefully considered.

2.  The evidence shows her commander recommended her separation based on her inability to pass the APFT.  Evidence also shows that she had been medically cleared for the APFT on 14 August 2001.

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.

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, the applicant's request should be denied.

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)                                         AR20100014140



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ABCMR Record of Proceedings (cont)                                         AR20100014140



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