IN THE CASE OF:	  

		BOARD DATE:  18 April 2012

		DOCKET NUMBER:  AR20110007857 


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 military records to show a service-connected medical discharge.

2.  The applicant states, in effect, that the Army discharged her because of medical conditions that existed prior to service (EPTS).  The applicant further states that the Department of Veterans Affairs (DVA) reviewed her medical records and indicated she was presumed “fit for duty.”  The applicant continues that the DVA also determined that her bilateral shin splint (anterior compartment syndrome) and lower back pain were directly caused by her military service.  She states, “Therefore, I deserve a medical discharge.”

3.  The applicant provides: 

* her DD Form 214 (Certificate of Release or Discharge from Active Duty) 
* a DA Form 4707 (Entrance Physical Standards Board (EPSBD)) Proceedings, dated 7 July 2003
* a DA Form 3349 (Physical Report), dated 9 July 2003
* a 6-page DVA Rating Decision, dated 2 June 2010
ending 22 August 2003
* a DA Form 705 (Army Physical Fitness Test Scorecard), dated 
20 February 2003
* eight DA Forms 689 (Individual Sick Slip) with various dates
* an undated DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States)

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 enlisted in the Regular Army on 20 November 2002.  She successfully completed basic combat training.  She did not complete advanced individual training (AIT).

3.  On 7 July 2003, an EPSBD convened.  The EPSBD identified two conditions that rendered the applicant unsuitable for continued service, specifically for migraine headaches and right lower leg shin splints.  During the course of the medical examination, the applicant admitted to a military neurologist that she had chronic daily migraine headaches since the age of five.  “She sought medical care for these when she was in Oregon.”  The applicant continued that she developed shin splint pain to the right lower leg in January 2002.  

4.  It was noted while on active duty, the applicant had numerous sessions of physical therapy and tried multiple nonsteroidal anti-inflammatories and stretching programs.  She had bone scans and they were all negative.  The EPSBD found the applicant did not meet retention standards and recommended that she be discharged from the military due to preexisting medical conditions.  The medical approving authority signed and dated the DA Form 4707; however, the document does not show whether he approved or disapproved the EPSBD findings.

5.  The applicant’s unit commander recommended that she be separated based on the EPSBD results.  On 9 July 2003, the separation authority approved the applicant’s separation.


6.  On 22 August 2003, the applicant separated from the service after completing 9 months and 23 days of creditable active service.  Her DD Form 214 shows:

* in item 25 (Separation Authority) the entry "AR 635-200, PARA 5-17"
* in item 26 (Separation Code) the entry "JFV"
* in item 28 (Narrative Reason for Separation) "PHYSICAL CONDITION, NOT A DISABILITY"

7.  The applicant provided a 6-page DVA Rating Decision, dated 2 June 2010, that shows she received service-connected disability ratings of: 

* 10 percent - lumbar strain with mechanical low back pain 
* 10 percent - anterior compartment syndrome, exercise induced, left lower extremity
* 10 percent - anterior compartment syndrome, exercise induced, right lower extremity
* 10 percent - tinnitus

for a combined evaluation of 40 percent.  The DVA examiner opined that the applicant had anterior compartment syndrome of both the right and left lower leg. The DVA examiner continued, “Based on your recorded statements, the military concluded the condition [shin splints] had its onset prior to military service and was aggravated by your military service.  At your VA examination on April 15, 2010, the VA examiner concluded the condition you were claiming was not shin splints.  It was exercised induced anterior compartment syndrome…[and] the condition is at least as likely as not caused by the result of military service.”

8.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  

	a.  Paragraph 5-3, provides guidance on separation by reason of Secretarial Authority.  It states, in pertinent part, that this authority may be used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army.

	b.  Paragraph 5-11 specifically provides that Soldiers who are not medically qualified under procurement medical fitness standards when accepted for enlistment, or who became medically disqualified under these standards prior to entry on active duty, active duty for training, or initial entry training will be separated.  A medical proceeding conducted by an EPSBD, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within 6 months [180 days] of the Soldier's initial entrance on active duty, that the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at the time of enlistment, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501, chapter 3.  The characterization of service for Soldiers separated under this provision will normally be honorable, but will be uncharacterized (entry level status) if the Soldier has not completed more than 180 days of creditable continuous active duty service prior to the initiation of separation action.

	c.  Paragraph 5-17, states 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.

9.  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 chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

10.  Title 38, U. S. Code, sections 1110 and 1131, permits the DVA to award compensation for a medical condition that was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine 
medical unfitness for further military service.  The DVA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for DVA benefits based on an evaluation by that agency.


11.  In addition, the award of a DVA rating does not establish entitlement to medical retirement or separation.  The DVA is not required to find unfitness for duty.  Operating under its own policies and regulations, the DVA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the DVA can evaluate a veteran throughout his/her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her honorable discharge should be corrected to show a medical discharge.  Evidence of record shows that an EPSBD found she did not meet retention standards and recommended that she be discharged from the military due to preexisting medical conditions for migraine headaches and right lower leg shin splints.  The applicant provided a 6-page DVA Rating Decision that shows she received a disability rating of:

* 10 percent - lumbar strain with mechanical low back pain 
* 10 percent - anterior compartment syndrome, exercise induced, left lower extremity
* 10 percent - anterior compartment syndrome, exercise induced, right lower extremity
* 10 percent - tinnitus

2.  The applicant’s records shows that she was incorrectly separated in accordance with Army Regulation (AR) 635-200, paragraph 5-17, condition not a disability.  This type of separation requires a member to be evaluated by a Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) with more than 180 days of federal active duty service.  AR 635-200, paragraph 5-11, provides that entry-level performance and conduct requires a member to be medically evaluated by an EPSBD with less than 180 days of active duty service. The applicant had 229 days of active duty service at the initiation of her EPSBD.

3.  The physical disability evaluation system evaluates Soldiers based on their ability/inability to perform their military duties.  There is no evidence that any of the above DVA disability ratings interfered with the applicant's military duties prior to her separation from the military.  


4.  The fact that the DVA may have granted the applicant a disability rating for the above medical conditions after her separation is not evidence that the Army's decision was in error or unjust.  The DVA rating does not establish entitlement to medical retirement or separation.  The DVA is not required to find unfitness for duty.  Operating under its own policies and regulations, the DVA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the DVA can evaluate a veteran throughout his/her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 

5.  The medical evidence of record supports the determination that the applicant's self-admitted EPTS conditions of migraine headaches and right lower leg shin splints were properly diagnosed at the time of her separation and were unfitting.  Therefore, there is no basis for granting the applicant's request.

6.  The evidence of record confirms the applicant was erroneously separated under the provisions of AR 635-200, chapter 5-17, by reason of physical condition, not a disability.  Even though she was not referred to a MEB and a PEB, it was opined at the EPSBD that she did not meet retention standards for her migraine headaches and right lower leg shin splints.  It cannot be concluded that failure to refer the applicant to an MEB/PEB resulted in an injustice.  The MEB would have established she did not meet retention standards under Army Regulation 40-501, chapter 3, for the diagnoses of migraines and shin splints.  The PEB would have been charged to determine:

* whether either of these conditions were unfitting
* whether or not they were EPTS
* whether or not they were permanently service aggravated

7.  The PEB would have found the conditions unfitting and would have determined they were EPTS (by the applicant's own admission).  There is no evidence, and the applicant has not provided evidence, that shows her migraine headaches and right lower leg shin splints were permanently service aggravated.

8.  Given the fact the applicant was not in an entry level status when EPSBD action was initiated, her discharge under the provisions of paragraph 5-17, Army Regulation 635-200 is incorrect.  Thus, in view of the facts of this case, it would be appropriate to correct the applicant’s record to show she was separated under the provisions of paragraph 5-3, Army Regulation 635-200, by reason of Secretarial Authority.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X ___  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting in item 25 of her DD Form 214 for the period ending 22 August 2003 the entry "AR 635-200, PARA 5-17;"

	b.  deleting in item 26 the entry "JFV;"

	c.  deleting in item 28 the entry "PHYSICAL CONDITION, NOT A DISABILITY"

	d.  amending item 25 of her DD Form 214 for the period ending 22 August 2003 to add the entry “Army Regulation 635-200, paragraph 5-3;”

	e.  amending item 26 to add the entry “JFF;” and

	f.  amending item 28 to add to add the entry “Secretarial Authority”


2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correcting the applicant’s honorable discharge to show a medical discharge.



      _________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)                                         AR20110007857



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ABCMR Record of Proceedings (cont)                                         AR20110007857



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