IN THE CASE OF:	  

		BOARD DATE:	  15 December 2012

		DOCKET NUMBER:  AR20110011508 


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 she was discharged due to a physical disability.

2.  The applicant states her discharge from the Army was based solely on the injuries she sustained while serving.  She was unable to remain in the Army due to her ankle injuries that left her unable to walk, run, or stand for long periods.

3.  The applicant provides a DD Form 214, a Department of Veterans Affairs (VA) claim decision, and portions of her discharge packet.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve Delayed Entry Program on 
6 June 2009.  Her DA Form 3286 (Statement for Enlistment) indicates she enlisted under the U.S. Army Officer/Warrant Officer Enlistment Program.

2.  Paragraph 4b of her DA Form 3286 contains the following statement:  
"I understand that if my enlistment contract cannot be fulfilled through no fault of my own, the alternatives available to me will be provided in Army Regulation 
635-200 (Active Duty Enlisted Administrative Separations).  I understand that I will have a period of 30 days from the time I am notified, become aware, or reasonably should have become aware that my selected training cannot become fulfilled, to elect an alternative training program for which I am qualified and a vacancy exist or request separation."
3.  On 9 September 2009, she enlisted in the Regular Army (RA) for a period of 
3 years and enrolled in Officer Candidate School (OCS).

4.  On 1 February 2010, she was temporarily withdrawn from OCS due to medical reasons.  The DD Form 785 (Record of Disenrollment from Officer Candidate-Type Training) indicates that she could request reinstatement to OCS once the medical disqualification had been removed.  

5.  On 8 February 2010, she requested a discharge under the provisions of Army Regulation 635-200, paragraph 7-16 (Defective or Unfulfilled Enlistment or
Re-enlistment Agreement) because she had been relieved from OCS.  On the same date, she was informed by her company commander the Army could not fulfill her enlistment contract and that per her request, he was initiating separation action against her due to an unfulfilled service commitment.  The commander pointed out that through no fault of her own, her injuries made her unable to execute OCS training and in accordance with OCS Commandant's policy, allowed under Army Regulation 350-51 (U.S. Army OCS), a combination of a profile and/or recovery time of 30 days or greater was cause for relief from the course.  

6.  On 19 February 2010, a representative from the Office of the Staff Judge Advocate reviewed the separation action and indicated that it was legally sufficient to support separation.

7.  On 10 March 2010, the separation authority approved the separation action.  Accordingly, on 19 March 2010 she was discharged.  Item 28 of her DD Form 214 shows the entry "Defective Enlistment Agreement."

8.  She provided a VA claim decision that shows she is currently receiving service-connected disability compensation.

9.  Army Regulation 635-200, chapter 7 provides for the separation of Soldiers for defective or unfulfilled enlistments.  Paragraph 7-16b specifies that an unfulfilled enlistment commitment exists when the Soldier receives a written enlistment commitment from recruiting personnel for which the Soldier is qualified but which cannot be fulfilled by the Army through no fault of the Soldier.  Paragraph 7-16e(1) provides that a non-prior service RA Soldier serving on the first enlistment may request immediate discharge.

10.  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.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of physical disability incurred or aggravated in service.  It states the mere presence of an 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 his or her office, grade, rank, or rating.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that item 28 of her DD Form 214 should be corrected to show she was discharged due to a disability has been carefully considered.  

2.  The evidence shows she was temporarily withdrawn from OCS due to medical reasons and that she was eligible to request reinstatement once the medical disqualification had been removed.  Although her medical records are not available, this indicates she had a temporary medical condition, not a permanent medical condition.

3.  At the time of her disenrollment from OCS a separation from the service was not required.  In accordance with her statement for enlistment, she could have requested an alternate training program instead of discharge.  Had she elected an alternate training program and remained in the Army, it is possible that her condition could have been treated and resolved, or it could have gotten worse and she could have been medically separated.  However, the evidence shows she requested a discharge due to the fact that the Army could not fulfill the enlistment commitment.

4.  Her discharge was based on an unfulfilled enlistment contract, not due to medical reasons.  Therefore, there is no basis to grant the requested relief.

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)                                         AR20110011508



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ABCMR Record of Proceedings (cont)                                         AR20110011508



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