IN THE CASE OF:	  

		BOARD DATE:	    1 March 2011

		DOCKET NUMBER:  AR20100019786 


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 her records to show she was issued a medical discharge.

2.  She states her discharge was due to an injury incurred during basic training.  Her discharge needs to be changed to medical because the injury happened during her military service.  The oversight has prevented her from seeking compensation for her disability and also from vocational assistance.

3.  She provides:

* radiologic examination report, dated 31 January 2005
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* letter to her commander, dated 15 March 2005
* DA Form 4856 (Developmental Counseling Form)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel provides no requests, statement, or additional evidence.

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 military records show she enlisted in the U.S. Army Reserve Delayed Entry Program on 16 July 2004.  She was discharged from the Delayed Entry Program and enlisted in the Regular Army in pay grade E-1 on 9 September 2004 for 3 years.  She did not complete advanced individual training (AIT) for award of a military occupational specialty (MOS).

3.  On 3 and 13 December 2004, she was assigned temporary physical profiles for bilateral leg pain.  On 21 January 2005 and 1 February 2005, she was assigned temporary physical profiles for stress fractures to her pelvis and hip.

4.  A radiologic examination report shows she underwent a bone scan/imaging examination on 31 January 2005.  The impression revealed subacute stress fractures of the bilateral inferior pubic rami, left acetabulum/left pubic ramus, and proximal right tibiae (grade II).  Radiographs of the bilateral shin and thigh splints were recommended for further evaluation.

5.  In a memorandum, dated 10 February 2005, the Deputy Commander for Clinical Services, Kirk U.S. Army Health Clinic, advised the applicant's command of her diagnosis:  stress fractures - bilateral inferior pubic rami, left acetabulum/
left pubic ramus, and proximal right tibiae (grade II).  The deputy commander stated that in spite of aggressive treatment, the applicant's bilateral hip pain had failed to improve significantly over the last 2 months.  While there was no indication the condition was permanent or would result in any permanent disability, the applicant was presently not able to perform the military duties required of her MOS.  The deputy commander recommended that the applicant be expeditiously separated from military service under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17.

6.  On 24 February 2005, the applicant received counseling from her unit commander regarding initiation of elimination proceedings to separate her from the U.S. Army under the provisions of Army Regulation 635-200, paragraph 5-17, for other designated physical or mental conditions.

7.  On 10 March 2005, the applicant's unit commander notified the applicant of initiation action to separate her under the provisions of Army Regulation 635-200, for having a physical condition, with an honorable discharge.  The reasons for the proposed action were that a qualified physician diagnosed her as having stress fracture - bilateral inferior pubic ramus, left acetabulum/left pubic ramus, and proximal right tibiae (grade II).  The applicant was also advised of her rights.

8.  On 10 March 2005 after consulting with counsel, the applicant acknowledged receipt of the proposed separation and the reason.  She waived her rights and elected to submit a statement in her own behalf.

9.  A DA Form 2173, dated 14 March 2005, in connection with her separation processing shows she began experiencing bilateral hip pain during basic training and a bone scan during AIT revealed multiple stress fractures.  It was medically opined her symptoms began after entering military service and could result in a temporary disability.

10.  In a statement, dated 15 March 2005, the applicant stated she started basic training with no problems with her pelvis, hips, knees, or ankle.  During a company run for physical training, she twisted her ankle slightly.  The real pain came as they were preparing to graduate.  She was assigned a temporary physical profile and was unable to ship to AIT with a profile.  She had already been on a temporary physical profile for nearly 3 months and had not healed at all, only to progress worse.  She was not willing to further injure herself for a passing physical fitness test score and was not interested in being marked as a "broken Soldier" with a permanent physical profile.  She stated she may enlist in the future after she heals properly.

11.  On 15 March 2005, the applicant's unit commander recommended the applicant be separated from the Army under Army Regulation 635-200, paragraph 5-17, with an honorable discharge.  The unit commander stated the recommendation was based on the recommendation of the physician that the applicant be discharged as her condition was not amenable to any other option.

12.  On 18 March 2005, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 5-17, with the issuance of an Honorable Discharge Certificate.

13.  She was honorably discharged in pay grade E-1 on 24 March 2005 under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of a condition, not a disability.  She was credited with 6 months and 16 days of net active service.

14.  Item 25 (Separation Authority) of her DD Form 214 shows "Army Regulation 635-200, paragraph 5-18" [sic].

15.  Army Regulation 635-200, paragraph 5-17, provides for the separation of enlisted Soldiers for other designated physical or mental conditions.  A commander may approve separation under this chapter on the basis of other physical or mental conditions not amounting to disability and excluding conditions appropriate for separation processing under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 5-11 or 5-13, that potentially interfere with assignment to or performance of duty.  The commander will refer the Soldier for a medical examination and/or mental status evaluation.  Army Regulation 635-200 does not contain a paragraph 5-18.

16.  Army Regulation 635-40, then in effect, provided for the expeditious discharge of enlisted personnel who, in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, were not qualified for retention on active duty by reason of physical disability which was neither incurred nor aggravated during any period in which the member was entitled to basic pay.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was notified of the proposed separation action under the provisions of Army Regulation 635-200, paragraph 
5-17, on 10 March 2005.  She was also advised that a qualified physician diagnosed her as having stress fractures – bilateral inferior pubic ramus, left acetabulum/left pubic ramus, and proximal right tibiae (grade II) – as the reason. 
Accordingly, on 24 March 2005, she was honorably discharged from the Army under the provisions of Army Regulation 635-200, paragraph 5-17, for a condition, not a disability.

2.  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.  She acknowledged the reason for her separation and stated she was not willing to further injure herself for a passing physical fitness test score and was not interested in being marked as a "broken Soldier" with a permanent physical profile.  She stated she may enlist in the future after she heals properly.

3.  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.

4.  During the process of this case, it was noted that item 25 of her DD Form 214 shows the separation authority as Army Regulation 635-200, paragraph 5-18.  Her records verify the separation authority as Army Regulation 635-200, paragraph 
5-17.  It appears that during the preparation of the applicant's DD Form 214 an administrative error occurred.  All other entries appear to be correct.

5.  Evidence shows that the applicant’s records contain an administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant’s records will be accomplished by the Army Review Boards Agency (ARBA) Case Management Division (CMD) as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X____  ___X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  The Board determined that an administrative error in the records of the individual concerned should be corrected.  Therefore, the Board requests that the ARBA CMD administratively correct the records of the individual concerned to correct her DD Form 214 by showing the separation authority as Army 

Regulation 635-200, paragraph 5-17, and by providing her a corrected document showing this change.



      _________________________
                 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)                                         AR20100019786



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ABCMR Record of Proceedings (cont)                                         AR20100019786



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