IN THE CASE OF:	  

		BOARD DATE:	  7 June 2011

		DOCKET NUMBER:  AR20100027606 


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 that his uncharacterized discharge be changed to a physical disability discharge.

2.  The applicant states:

* his injury was service connected
* he required surgery 
* he is still being treated for ongoing problems with his arch and ankle
* he is presently being treated by the Department of Veterans Affairs (VA)
* his medical records are attached

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* 60 pages of his medical records from the Northport VA Medical Center (VAMC)
* 25 pages of his medical records from the St. Charles Hospital

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army on 31 January 2008.

2.  The applicant's records also show he received development counseling statements from 19 February to 10 July 2008 for the following reasons:
   a.  Three for failure to meet unit standards by disobeying lawful orders, showing disrespect towards an officer and noncommissioned officer, lying to a senior noncommissioned officer, violating the honors value, displaying a severe lack of discipline, displaying a bad attitude and lack of motivation, refusing to conform to military standard and/or regulations, missing training, performing unsatisfactory; and being "weak at heart."  

	b.  Four for failure to meet the minimum standard of 60 percent in each event on the diagnostic Army Physical Fitness Test due to a lack of stamina.  

	c.  Two for failure to compete foot marches.  

	d.  One of the above counselings -- for being "weak at heart" and for having a severe lack of discipline, a bad attitude, and a lack of motivation and disrespect, was given on 19 February for his action during physical training.

3.  Page Two (Session Closing) of his DA Forms 4856 (Developmental Counseling Form) show that he agreed all of his counseling sessions and did not mention any injuries in any of them.

4.  He submitted 31 pages of Standard Forms 600 (Chronological Record of Medical Care) which show that on:

* 9 April 2008 - complained of having knee and hip pain for 6 weeks, he was treated and released
* 17 April 2008 - treated for an ankle sprain incurred on 15 April 2008, profiled, treated and released
* 2 May 2008 - change of station physical, released without limitations
* 12 May 2008 - seen for bumps on his hand, he did not complain of ankle pain  
* 22 May 2008 - requested to be returned to duty, no longer had ankle pain when running, walking, or jumping, returned without limitations
* 6 June 2008  - seen for follow up for ankle pain and bilateral shin pain, no pain, foot motion normal, treated and released
* 10 June 2008 - seen for right ankle pain, no swelling, complaint "gives away", referred to ankle class and physical therapy
* 18 June 2008 - requested to be returned to duty, states pain not worse, does not suddenly "give away", returned to duty

5.  He submitted five pages of his Standard Form 519-B (Radiological Examination Report) which shows he was given a limited bone scan due to right foot and left tibia pain on 20 June 2008.  The bone scan found nonspecific asymmetric increased distal tibia and adjacent tendons at the joint level which may still be stress-related progress or favoring since he had more symptoms in his left leg.

6.  On 9 July 2008, the applicant's commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, due to entry-level performance and conduct.  The commander cited the applicant's lack of potential to be a Soldier, his refusal to train, and his unwillingness to adapt to military service as the specific reasons for his proposed action.

7.  On the same day, the applicant acknowledged receipt of the proposed action against him and waived his right to legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counseling, the applicant completed his election of rights by waiving his right to have his case considered by an administrative separation board and declined to submit statements in his own behalf.  The applicant declined to have a separation medical examination.

8.  On 16 July 2008, the separation authority approved the waiver of the applicant's rehabilitative transfer and his discharge under the provisions of Army Regulation 635-200, paragraph 11-3, and directed that he be given an entry-level separation.

9.  On 24 July 2008, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 11-3a, by reason of entry-level status performance and conduct with an uncharacterized discharge.  The DD Form 214 he was issued shows he held the rank of private/E-1 and completed a total of 5 months and 24 days of active military service.

10.  He submitted 25 pages of his medical records from St. Charles Hospital in Port Jefferson, NY, dating from 14 September 2009 to 19 January 2010, which show that:

   a.  14 September 2009 - he presented for a second opinion for his right ankle pain.  He was recommended for a diagnostic arthroscopy and 

   b.  8 January 2010 - underwent surgery for a right ankle arthroscopy and debridement of lateral gutter impingement syndrome due to history of ankle injury.  There was no evidence of cartilaginous injury or osteochondral injury.

11.  He submitted 60 pages of his medical records from the Northport VA Medical Center, dating from 28 December 2009 to 26 August 2010, which show he underwent treatment at the VAMC for his right mid-foot pain.  

12.  His Northport VAMC record also shows that he experienced pain in his right arch during physical therapy.  He was diagnosed with flat foot and plantar fasciitis but there is no record of any arch pain while he was on active duty.

13.  His consult request from the Northport VAMC, dated 28 September 2010, shows he was rated 10 percent (%) service connected as a result of limited motion of ankle and 0% service connection for his knee condition.

14.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  Chapter 11 provides the policies and procedures for separating individuals who are in an entry-level status (180 days or less) who cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline.  It provides that service under this provision will be uncharacterized unless the Secretary of the Army determines that a characterization of honorable is warranted by unusual circumstances involving personal conduct and performance of duty.

15.  Army Regulation 635-200, paragraph 3-9 (Uncharacterized Separations), provides that a separation will be described as an entry-level separation with service uncharacterized if processing is initiated while a Soldier is in an entry-level status.  This paragraph provides that entry-level status terminates 180 days after the Soldier's entry on active duty.

16.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states the medical treatment facility commander with primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEB).  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence in the record and the applicant failed to provide evidence that shows his physical unfitness led to a medical condition while on active duty that would have warranted consideration by an MEB or a PEB.  Nor does the evidence show that the applicant was unfit due to an ankle sprain, the sequelae of an ankle sprain, or arch pain at the time of his separation.

2.  The evidence shows that he performed poorly in basic training.  His physical performance was attributed to the lack of stamina, lack of heart, and lack of motivation, which he agreed to.  His poor physical performance preceded his ankle sprain, which was mild, by several weeks.  Evidence also shows that he did not seek medical care until 2 days after he sprained his ankle, and he was profiled for only 6 days.  His ankle pain returned after he was recycled but his last clinic note shows that he recovered completely about a month prior to his separation.  Evidence of also does not show that he had arch pain prior to his separation.

3.  There is insufficient evidence to show his ankle problem rendered him unfit for military service.  The applicant did not complete 180 days of continuous active service prior to being discharged.  Therefore, his records are correct as currently constituted and there is no basis to change the applicant's reason for separation as requested.

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 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)                                         AR20100027606



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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