BOARD DATE:	  4 August 2011

		DOCKET NUMBER:  AR20110003587 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically discharged for disability instead of being discharged by reason of a "condition - not a disability."

2.  The applicant states he was injured during basic combat training (BCT).  His injuries consisted of but were not limited to 3rd metatarsal stress fracture bilateral, damage to his knees, as well as his hips and pelvis.  After his discharge, he found out that he should have gone through a medical board process by at least three doctors.  He had severe emotional distress due to the injuries, medications, hospital status, training status, and treatment by other Soldiers.  His chain of command ignored his service-connected disabilities and multiple doctors' recommendations to be medically discharged.  His commander ignored the recommendations and just wanted him discharged.  He even requested to speak with the Inspector General (IG) but he was not allowed to do so.  The discharge he was given prevents him from being considered a veteran.  If he had been properly discharged, he would be considered a veteran.  

3.  The applicant provides:

* His DD Form 214
* Multiple chronological records of medical care
* A compact disc (CD) containing various radiological reports, images, and other documents
* 
His emergency care and treatment records
* His medical records and supplementary medical data forms
* Multiple civilian operative reports and medical statements

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code (USC), 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 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 18 April 2007.  He completed BCT at Fort Sill, OK, and proceeded to Fort Sam Houston, TX, for completion of advanced individual training.  

3.  On 20 August 2007, he underwent a mental evaluation wherein he was diagnosed with an adjustment disorder with depressed mood.  The psychologist indicated the applicant was unsuitable for military service. 

	a.  The applicant had a mood disorder that was marked by anxiety and depression.  He was provided with psychological and psychiatric services at the Community Behavioral Health Services since July 2007 but his symptoms did not improve.  His mood disruption may have contributed to or exacerbated a recent week-long hospitalization for angiodema and uticaria.  He reported a significant history of poor reaction to stressors and limited coping mechanisms.

	b.  Reclassification was unlikely to result in a positive outcome.  He did not have a psychiatric condition that would necessitate a medical evaluation board (MEB).  He was cleared for administrative actions deemed appropriate by his chain of command.

	c.  It was extremely unlikely the applicant would successfully adapt to a military environment.  If not released, his mood would continue to deteriorate and potentially lead to behaviors inconsistent with military service.  He was recommended for discharge.

4.  On 22 August 2007, he was issued a 1-week temporary physical profile for multiple lower extremity stress fractures.  The profile restricted his physical activities and assigned him temporary physical limitations.

5.  On 24 August 2007, he submitted a medical statement wherein he indicated that he underwent a physical examination on or about 11 April 2007 and to the best of his knowledge, there had been no significant change in his medical condition since that examination.

6.  On 1 September 2007, he was counseled by his senior drill instructor after having been involved in a physical altercation with another Soldier.  The other Soldier alleged that he had been assaulted and threatened by the applicant.  During the counseling, he became disrespectful to his drill sergeant.  He used provocative speeches and gestures and he disobeyed an order and threatened the senior drill sergeant with an IG complaint. 

7.  On 7 September 2007, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for disobeying a lawful order.

8.  On 12 September 2007, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 5-17, for other designated physical or mental conditions.  The specific reason was the applicant's adjustment disorder with anxiety and depressed mood.

9.  On 13 September 2007, the applicant acknowledged receipt of the separation notification memorandum and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  He also acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He elected not to submit a statement in his own behalf.

10.  Subsequent to the applicant's acknowledgement, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of his diagnosed adjustment disorder with anxiety and depressed mood.  The commander recommended the applicant receive an uncharacterized characterization of service.

11.  On 19 September 2007, the intermediate commander recommended approval of the discharge action with an uncharacterized character of service.
12.  On 21 September 2007, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 5-17 and directed his service be uncharacterized.  Accordingly, the applicant was discharged on 25 September 2007.

13.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 5-17, based on a condition, not a disability, with a separation code of "JFV."  This form also shows he completed 5 months and 8 days of net active service during this period.  His character of service is listed as "uncharacterized."

14.  His available medical record does not indicate that he suffered from an injury, illness, or any medical condition that would have warranted his entry into the Army's physical disability evaluation system (PDES).

15.  He submitted the following documents:

	a.  A Standard Form (SF) 600 (Chronological Record of Medical Care), dated 11 September 2007, which shows he stated his right hip and foot pain had improved.  He stopped using crutches as he felt he was able to walk without a limp throughout the day.  He also stated that he was still following up with mental health and pursuing a chapter.  He further indicated he wanted out of the Army. 

	b.  An SF 600, dated 22 August 2007, at the physical therapy clinic, which shows he was seen for various medical issues including stress fracture, overweight, adjustment disorder with depressed mood, occupational problems, angiodema, and other issues.

	c.  An SF 600, dated 24 August 2007, which shows he was seen for uticaria and angiodema of unknown etiology.  He was thoroughly examined, educated, prescribed medication, and asked to follow up. 

	d.  An SF 600, dated 27 August 2007, which shows he underwent a lower body scan and that his bilateral hips demonstrated no significant radiotracer uptake to indicate pathology.  The doctor's impression was that of normal appearing hips, right shin splints, and stable bilateral distal third metatarsal stress fracture.

	e.  An SF 600, dated 27 August 2007, which shows he was working on a chapter for mental health.  He again reiterated that he wanted out of the Army.

	f.  An SF 600, dated 28 January 2008, which shows he followed up at the community hospital regarding stress fracture of the third metatarsal bone.  He had previously undergone a bone scan in July 2007.  A later bone scan in August 2007 revealed normal hips. 

	g.  A medical doctor's note, dated 8 February 2008, which shows he was seen for bilateral arch and plantar heel pain.  X-rays revealed no evidence of fracture, dislocation, or spur.  There was evidence of a healed stress fracture of the third metatarsal bone with callus formation, bilaterally.  He was educated regarding his condition and informed about physical therapy consisting of strengthening and stretching. 

	h.  A CD containing radiological reports and/or images; and a civilian operative report, dated 28 January 2009, which shows he underwent surgical arthroscopy of the right knee with lateral retinacular release, patellar chondroplasty, and excision of plica.

	i.  Multiple medical documents showing he underwent scan of the lumbar spine for back pain, right knee pain, and pelvis/bilateral hips pain. 

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 or her office, grade, rank, or rating.  It provides for MEB's 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 Army Regulation 40-501 (Standards of Medical Fitness).  

17.  Army Regulation 635-40, paragraph 3-1 provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  To ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation 40-501, chapter 3.  These standards include guidelines for applying them to fitness decisions in individual cases.

18.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or at least a
30 percent (%) disability rating percentage.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than
20 years of service and a disability rating at less than 30%.
DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from 18 April to 25 September 2007.  During training, he sustained injuries in the form of stress fractures and shin splints.  He received appropriate medical attention and according to his available medical record, these injuries healed without problems.

2.  He compiled all his medical documents and now submits them with his application to this Board in an effort to suggest this was the reason for his discharge.  Yet, nowhere in the medical documents he submitted is there evidence that the stress fractures, documented on his temporary physical profile, rendered him unfit for retention.

3.  The reason he was discharged was his mental condition.  He underwent a mental status evaluation that diagnosed him as having a mood disorder that was marked by anxiety and depression.  He even pursued a chapter for his mental condition as shown by the very same medical documents he submitted.  His mood issues were incompatible with military service.  The military psychiatrist stated the applicant was mentally competent and recommended his separation.

4.  Accordingly, his commander initiated separation action against him under the provisions of Army Regulation 635-200, paragraph 5-17.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  

5.  There is no evidence in the available records and he did not provide sufficient evidence that shows he was diagnosed with a medical condition that would have warranted his entry into the PDES.  But even if he did have a medical condition, the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the 
nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.

6.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  The applicant did not have a disabling condition.  He had a condition; not a disability.

7.  In view of the foregoing, there is an insufficient basis for granting the applicant's request.


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)                                         AR20110003587



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ABCMR Record of Proceedings (cont)                                         AR20110003587



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