IN THE CASE OF:	  

		BOARD DATE:	  22 December 2011

		DOCKET NUMBER:  AR20110006414 


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 medical retirement.

2.  The applicant states:

	a.  she should have been medically retired due to disability instead of simply receiving an honorable discharge;

	b.  during her enlistment processing, she contracted for the "training of choice" enlistment option in military occupational specialty (MOS) 43E (Parachute Rigger);

   c.  "hypothyroidism" was the only existing medical condition identified upon her entry on active duty;

	d.  during her fifth week of initial entry training while in jump training, she suffered a hip and back injury that ultimately rendered her medically fit for duty with assignment limitation due to chronic back strain;

   e.  due to her permanent medical condition, she was unable to complete the "parachute rigger" training and she given an option to reclassify into one of three MOSs of her choice;
   
   f.   the MOS training she selected could not be promised her in a timely manner and no one counseled her regarding her rights according to the laws governing separation and the types of discharges for which she might qualify;
   g.  although she was in great pain, using a cane, and had mobility issues at the time of her discharge, she was not administered an exit physical;
   
   h.  her previous flight physical was altered and used as an exit physical without her permission; and 
   
    i.  the discrepancies listed on her DD Form 214 (Report of Separation from Active Duty) as indicated should be corrected:
   
* Item 9c (Authority and Reason) - is lined through
* Item 10 (Reenlistment Code (RE)) - is lined through
* Item 32 (Signature of Person Being Separated) - is blank

3.  The aforementioned discrepancies referred to by the applicant are only lined through or left blank on copy 4 of the DD Form 214 as authorized by regulation.  The original DD Form 214 or page 1, copies 2-3, and 5-7 all contain the appropriate entries.  A completed DD Form 214 showing all entries will be provided to the applicant with a copy of these proceedings.  Accordingly, this portion of her request will not be mentioned any further in these proceedings.

4.  The applicant provides a self-authored statement and an indexed list of
52 enclosures.

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 official military personnel file (OMPF) shows she initially enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on      3 December 1976.  She was discharged on 8 August 1977 for purpose of enlisting in the Regular component.

3.  Her OMPF contains a Standard Form 88 (Report of Medical Examination) dated 29 November 1976, initially prepared during her enlistment processing in the USAR DEP.  It shows she underwent a medical examination on:

	a.  3 December 1976, and was found qualified for enlistment (this entry is lined through); and

	b.  9 August 1977, and was found qualified for Airborne/Ranger training.

4.  A DA Form 3286-40 (Statements for Enlistment) prepared during the applicant's enlistment processing shows she enlisted for the "H-3 US ARMY TRAINING OF CHOICE ENLISTMENT OPTION."  It shows she was assured of attending the 43E course.

5.  On 9 August 1977, the applicant enlisted in the Regular Army for a period of 3 years.  She completed basic training at Fort McClellan, Alabama and was reassigned to Fort Benning, Georgia to attend the basic airborne course on 14 October 1977.

6.  A Standard Form 513 (Clinical Record/Consultation Sheet) dated 17 November 1977 shows:

	a.  The applicant was a 19 year old female and airborne trainee.

	b.  The applicant noted the onset of left hip joint pain on 17 October 1977, during a parachute landing fall (PLF).

	c.  Her pain was due to no specific trauma.

	d.  She was dropped from training on 19 October 1977.

7.  A DA Form 3349, dated 27 February 1978, shows:

	a.  The applicant received a permanent 112111 (PULHES) physical profile:  

* P - physical capacity or stamina
* U - upper extremities
* L - lower extremities
* H - hearing and ears
* E - eyes
* S - psychiatric

The “2” rating under the “L” (lower extremities) was the result of her chronic back strain. 

	b.  A medical board determined she was medically qualified for duty with permanent assignment limitations that restricted her from airborne, special forces, and ranger training.

	c.  The approving authority approved the findings and recommendations of the medical board on 28 February 1978.

8.  On 3 March 1978, the applicant requested discharge from the Army under the provisions of Army Regulation 635-200, paragraph 5-26, by reason of "unfulfilled enlistment commitment."  She indicated:

	a.  She was permanently disqualified from airborne training due to hip problems and therefore unable to train in her option of choice MOS of 43E.

	b.  She requested training in MOSs 00B (Diver), 93E (Meteorological Observer), and 71R (Broadcast Journalist); however, no allocations were available.

	c.  She was offered training in MOS 67V (Helicopter Repairer), but she did not want to serve in this career field.

	d.  She wanted to be discharged from the Army because she could no longer train in her option of choice MOS 43E.

9.  The applicant's OMPF includes a Standard Form 88 initially dated 13 December 1977 which shows she was administered an initial Class 2 Air Traffic Control Flight Physical and found qualified for this training.  It also shows that this information was subsequently lined through and she was administered a separation physical and determined qualified for separation on 14 March 1978.

10.  On 15 March 1978, the separation authority approved the applicant's separation under the provision of paragraph 5-16, Army Regulation 635-200.  She was discharged accordingly on 16 March 1978.

11.  The DD Form 214 she was issued at the time of her discharge confirms she was honorably discharged under the provisions of paragraph 5-26 of Army Regulation 635-200.  It also shows she completed a total of 7 months and 8 days of creditable active military service.

12.  The applicant's record is void of any medical treatment records or other documents that indicate she was treated for a disabling medical or mental condition during her active duty tenure.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-26, in effect at the time of the applicant's discharge processing, provided for discharging Soldiers with unfilled enlistment commitments.  Prior to approving the request for discharge, action should be taken to resolve individual cases and to determine alternate options available.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army physical disability evaluation system 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 medical evaluation boards, 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 (Standards of Medical Fitness).  If the medical evaluation board (MEB) determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB).

15.  Paragraph 3-1 of this regulation 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform his/her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she should have been medically discharged.

2.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

3.  The evidence of record shows that based on the applicant's chronic back strain condition, a medical board determined she was medically qualified for duty with limitations that restricted her from assignments which included the MOS for which she enlisted.  Based on this restriction and a lack of allocations for any of the additional training she sought, the applicant voluntarily requested a discharge from the service and it was approved.

4.  The evidence of record confirms the applicant's initial enlistment and airborne/ranger physicals were documented on the same Standard Form 88.  It also confirms her initial ATC flight and separation physicals were also documented on the same Standard Form 88.  The rationale why these four separate examination physicals were documented as shown in the applicant's OMPF is not explained.  However, this does not negate the decision of the medical board that found her fit for duty.

5.  There is no evidence in the applicant’s OMPF showing she suffered from an injury and/or any other medical condition that warranted her entry into the Physical Disability Evaluation System.  Accordingly, there is no basis to grant her a medical discharge.

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)                                         AR20110006414





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ABCMR Record of Proceedings (cont)                                         AR20110006414



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