BOARD DATE:	  16 August 2011

		DOCKET NUMBER:  AR20110001958 


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 item 28 (Narrative Reason for Separation) of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show "Service-Connected Disability" or "Physical Disability, Involuntary Discharge" vice "Physical Condition, Not a Disability."

2.  The applicant states she was injured while in the Army and never fully recovered.  She does not understand why her DD Form 214 states she was honorably discharged by reason of physical condition, not a disability.  She was discharged on 3 June 2003 and by December 2003 her physical condition was certified as being a qualifying disability by the Department of Veterans Affairs (VA).

3.  The applicant provides her DD Form 214 and a VA summary of benefits letter.

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 records show she enlisted in the Regular Army on 7 November 2002.  She was assigned to basic training at Fort Jackson, SC.

3.  A radiologic examination report, dated 21 January 2003, shows the findings of a bone scan and stated "There is minimal increased activity at the right medial tibial plateau with mild stress injury.  No other significant lesions seen."

4.  A memorandum for record, dated 12 May 2003, written by the Commander, Fitness Training Company, Fort Jackson, SC, stated, in pertinent part, "[Applicant] arrived at the Physical Therapy and Rehabilitation Program (PTRP) on 31 January 2003 due to general knee pain sustained in basic combat training.  She continued to have pain with physical activity and has not made adequate progress.  Her condition does not require additional medical care nor does it warrant a medical board.  She is expected to heal fully given more time to do so.  It is my professional opinion that she will not successfully complete PTRP and is not a good candidate for further rehabilitation efforts.  It is in the best interest of the Army and Soldier to proceed with separation proceedings in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-17."

5.  On an unknown date, her immediate commander notified her of his intent to initiate separation action against her in accordance with Army Regulation
635-200, paragraph 5-17, other designated physical or mental conditions.  Specifically, he cited the applicant's extensive treatment for knee pain, noted the prognosis and recovery time would reasonably interfere with her ability to successfully ship to training, and he stated he was recommending her for an honorable discharge.

6.  On 21 May 2003, the applicant acknowledged receipt of the commander's intent to separate her, waived her right to consult with legal counsel, and elected not to submit a statement on her own behalf.  She further acknowledged that she was advised of the basis for the contemplated separation action, the type of discharge she could receive, the possible effects of this discharge, and of the procedures/rights that were available to her.  

7.  On 25 May 2003, her senior commander recommended approval of the discharge action with the issuance of an honorable discharge.

8.  On 28 May 2003, the separation authority approved her discharge under the provisions of Army Regulation 635-200, paragraph 5-17, with a characterization of service as honorable.  On 3 June 2003, she was discharged accordingly.

9.  The DD Form 214 she was issued confirms she was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-17.  She completed 6 months and 27 days of creditable active service.  Her DD Form 214 shows in:

* Item 25 (Separation Authority) "Army Regulation 635-200, paragraph
5-17"
* Item 26 (Separation Code) "JFV"
* Item 28 (Narrative Reason for Separation) "Physical Condition, Not a Disability"

10.  The applicant provides a VA letter, dated 31 January 2009, that shows she is a service-connected disabled veteran and her "combined service-connected evaluation is 30."  The letter does not state what condition the evaluation is for.

11.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  Chapter 5, paragraph 5-17 states, in pertinent part, that commanders who are special court-martial convening authorities may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty.  A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition.  Members may be separated for physical or mental conditions not amounting to disability, sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired.  Members separated under this provision of the regulation will be awarded a character of service of honorable, under honorable conditions, or an uncharacterized description of service if in entry-level status.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states Medical Evaluation Boards (MEB) 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 qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

13.  Army Regulation 401-501, chapter 3, does not list unspecified pain as a condition warranting an MEB.

14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The "JFV" SPD code is the correct code for Soldiers separating under paragraph 5-17 of Army Regulation 635-200 and "Physical Condition, Not a Disability" is the corresponding entry for the narrative reason for separation.

15.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant suffered from knee pain, a medical condition not amounting to a physical disability that interfered with her completing basic training and her being further assigned to advanced individual training.  She was assigned to the PRTP and received physical therapy for three and a half months without making adequate process.  Accordingly, her chain of command initiated separation action against her. 

2.  Her narrative reason for separation was assigned based on the fact that she was separated under the provisions of Army Regulation 635-200, paragraph
5-17, due to a medical condition - not a disability.  Unspecified pain is not listed in Army Regulation 401-501, chapter 3; therefore, she did not have a condition warranting referral to an MEB.  Absent this condition, there was no fundamental reason to process her for discharge.  Therefore, the only valid narrative reason for separation permitted under this paragraph is "Physical Condition, Not a Disability" and the appropriate separation code associated with this discharge is "JFV."  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Her narrative reason for separation is correctly shown on her DD Form 214.  Therefore, she is not entitled to the requested relief.

3.  A disability decision rendered by another agency does not establish error on the part of the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining the medical condition of a Soldier at the time of their discharge.  The VA may award ratings because of a service-connected disability that affects the individual's civilian employability.  

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)                                         AR20110001958





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ABCMR Record of Proceedings (cont)                                         AR20110001958



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