IN THE CASE OF:	  

		BOARD DATE:	    6 January 2011

		DOCKET NUMBER:  AR20100017658 


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, in effect, correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she was honorably discharged for medical reasons. 

2.  The applicant states she was medically boarded from the military.

3.  The applicant provides:

* DD Form 214 
* Physical Disability Separation Memorandum
* Department of Veterans Affairs (VA) 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's record shows she enlisted in the U.S. Army Reserve (USAR) on 10 May 2002 for a period of 8 years.  She entered active duty for training (ADT) on 19 November 2002 and was reassigned to Fort Jackson, SC, for completion of basic combat training (BCT).

3.  On 11 January 2003, she complained of a pulled muscle in the groin area of her right leg.  She was seen at the troop medical clinic and she was prescribed medications.  She was seen again on 21 and 22 January 2003 for a follow-up.  The attending physician noted she had a healing non-displaced fracture at the right hip and normal left hip.  She was seen again on 29 January and noted for her ability to pass the Army Physical Fitness Test and basic combat training.  Nevertheless, she was assigned a restrictive physical profile for 5 days.  

4.  She ultimately completed BCT and she was reassigned to Fort Sam Houston, TX, on 14 February 2003 for completion of advanced individual training (AIT).  She successfully completed AIT and she was awarded military occupational specialty (MOS) 91W (Medical Specialist).

5.  She was honorably released from ADT on 22 October 2003 to the control of her USAR unit, under the provisions of chapter 4 of Army Regulation 635-200 (Personnel Separations) by reason of completion of her required service.  She was assigned to the 328th Field Hospital, Salt Lake City, UT.

6.  Her DD Form 214 shows she completed 11 months and 4 days of creditable active service.  

7.  On 3 November 2003, a medical determination indicated she sustained a hip injury that was determined to be in line of duty.  A DA Form 2173 (Statement of Medical Examination and Duty Status), initiated by the patient administrator on 6 October 2003 and completed by the unit commander on 3 November 2003, prepared at Fort Sam Houston, TX, shows she incurred a stress fracture to her right hip while attending BCT at Fort Jackson, SC, in November 2002.

8.  Her ARPC Form 249-E (Chronological Statement of Retirement Points) shows she performed monthly drills with her unit between 25 October 2003 (date of 

release from ADT) and 18 July 2004 (date she was ultimately discharged from the USAR).

9.  A narrative summary (NARSUM), dictated on 27 January 2004, shows she was diagnosed with chronic stress fractures.  She had improved with her physical profile but each time she performed any activity, her condition worsened.  The attending physician indicated she failed to meet retention criteria of paragraph   3-41e of Army Regulation 40-501 (Standards of Physical Fitness) and recommended her entry into the physical disability evaluation system (PDES).  

10.  On 30 January 2004, a medical evaluation board (MEB) convened at Madigan Army Medical Center, Tacoma, WA, 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 chronic stress fracture.  The MEB recommended she be referred to a physical evaluation board (PEB).  She did not agree with the MEB's findings and recommendation and submitted an appeal (not available for review).  Her appeal was considered and forwarded to the PEB for adjudication. 

11.  On 31 March 2004, an informal PEB convened at Fort Lewis, WA, and found the applicant's condition prevented her from performing the duties required of her grade and specialty and determined that she was physically unfit due to bilateral lower extremity pain and pelvic pain secondary to stress reactions/stress fracture during initial entry training.  She was rated under the VA Schedule for Rating Disabilities (VASRD), assigned code 5022, and granted a 0% disability rating.  The PEB recommended that the applicant be separated with entitlement to severance pay if otherwise qualified.  The applicant initially elected not to concur and she demanded a formal hearing of her case on 28 April 2004; however, on 14 May 2004, she withdrew her demand and accepted the PEB's findings and recommendations.

12.  On 12 July 2004, by memorandum, the U.S. Army Physical Disability Agency (USAPDA), authorized her discharge from the USAR with entitlement to severance pay, and on the same date, USAPDA published Orders D194-4 discharging her from the USAR effective 13 August 2004 with entitlement to severance pay based on her grade of E-3 and 11 months and 4 days of service.. 

13.  She submitted a copy of her VA rating decision that shows the VA awarded her service-connected disability compensation for a right heel and ankle stress fracture effective 23 October 2003. 


14.  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.

15.  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. 

16.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  

17.  Army Regulation 135-178 (Separation of Enlisted Personnel), 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.  

18.  Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers), paragraph 7-2, requires reservists who are not 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 did not necessarily render her unable to perform the duties required of her grade or specialty as evidenced by the fact that she successfully completed BCT and AIT.  While on ADT, she did not enter the PDES.  Therefore, she was not considered by an MEB or a PEB prior to being released from active duty.  Without a PEB, she could not have been issued a medical discharge or separated for physical disability.  Accordingly, she was honorably released from ADT on 22 October 2003 by reason of completion of her required service.

2.  Subsequent to her release from ADT, she underwent a medical examination on 25 November 2003 and she was determined to have suffered the medical condition while on active duty that appears to have worsened after her release from ADT as confirmed by her NARSUM, dictated on 27 January 2004, which shows a diagnosis of chronic stress fracture and referral to the PDES.  

3.  Accordingly, she was considered by an MEB that referred her to a PEB.  The PEB found her medical condition prevented her from performing her duties and determined she was physically unfit for further military service.  The PEB recommended separation with entitlement to severance pay.  She concurred with this finding and recommendation and she was ultimately discharged from the USAR on 13 August 2004 by reason of medical disability.

4.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the PEB's recommendation.  There is no error or injustice in this case.  Her DD Form 214 properly shows she was released from active duty by reason of completion of required service and her USAR discharge order properly shows she was discharged for medical disability.  In view of the foregoing evidence, she 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)                                         AR20100017658



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ABCMR Record of Proceedings (cont)                                         AR20100017658



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