IN THE CASE OF:	  

		BOARD DATE:	  26 January 2012

		DOCKET NUMBER:  AR20110012624 


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 her honorable discharge (HD) be changed to a medical discharge.

2.  The applicant states:

   a.  She was denied a medical discharge despite her medical diagnosis and
x-rays submitted by her civilian chiropractors to the Army physician in charge of her case at Fort Huachuca.
   
   b.  She was advised by her senator's office to submit an application to this Board when she was denied post 9/11 GI Bill education benefits from the Department of Veteran Affairs (VA) due to not having a medical discharge and insufficient service dates.
   
   c.  She injured her back toward the end of basic training and began to have difficulty with physical training due to pain.
   
   d.  Upon arriving at advanced individual training (AIT), she consulted an Army doctor who quickly dismissed her medical concerns.
   
   e.  At her own expense, she visited two chiropractors who diagnosed her back pain as degenerative discs disorder and muscle spasms.
   
   f.  She submitted her civilian chiropractors' medical diagnosis to the same Army doctor, who initially dismissed her concerns, and he completely ignored the evidence saying nothing was physically wrong with her.
   
   g.  On 28 February 2008, she was rushed to sick call after feeling sharp shooting pains down her spine where she was given a Tramadol injection to reduce her pain.
   
   h.  She sought assistance from her chain of command who attempted to help her and initiate a medical discharge; however the same doctor would not allow for her medical discharge leaving her no other option but to accept "unsatisfactory performance" discharge.
   
   i.  Immediately after her discharge, she saw a neurologist who also diagnosed her "chronic low back pain" and agreed she needed treatment for her back.
   
   j.  Although first denied VA healthcare benefits, upon appeal, the VA recognized her injuries were the direct result of her Army service and granted her healthcare benefits and service connected disability compensation.
   
   k.  Given the substandard implications of the honorable discharge by reason of "unsatisfactory performance" received, she should be granted a medical discharge based on the tremendous changes in her life over the last four years as a result of her back pain and its lingering effects and the improper medical care received from the Army doctor who was overruled by the VA doctors.
   
3.  The applicant provides the indexed list of documents included with her application.

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 record confirms she enlisted in the Regular Army and entered active duty on 7 June 1990.  She completed basic combat training at Fort Leonard Wood, Missouri and was reassigned to Fort Huachuca, Arizona to attend AIT on 20 August 2007.

3.  The medical evidence of record, which she provides, includes nine Standard Forms (SF) 600 (Chronological Record of Medical Care) dated between 5 November 2007 and 19 March 2008, and two SFs 519B (Radiologic Examination Reports).  These documents show that based on her chief complaint of back pain:

   a.  The applicant was seen by three different doctors, twice in the student clinic and once in the physical therapy clinic between 5 - 28 November 2007.  She was given a provisional diagnosis of lumbago and returned to duty with temporary profile.
   
   b.  On 8 January 2008, during a follow-up appointment, a fourth doctor indicates the applicant was seeing a chiropractor during Exodus.  Based on no improvement in her condition, he ordered x-rays, a magnetic resonance imaging (MRI) and a nerve conduction velocity (NCV) testing.  She was returned to duty without limitations.
   
   c.  On 6 February 2008, the applicant was seen again by fourth doctor or doctor number four for administrative purposes.  The doctor informed her the MRI showed she had a completely normal lumbar.  He also indicated she had extensive evaluation with normal findings.  She was returned to duty without limitations.
   
   d.  On 21 February 2008, the applicant was seen by a fifth doctor for chronic back pain who confirmed the negative MRI and xrays.  He informed the applicant there was not much evidence to support her back pain at the time.  He also recommended a Medical Evaluation Board (MEB) or "chapter other than medical."  However, he referred the applicant to orthopedic clinic for final say.
   
   e.  On 28 February 2008, the applicant was brought into the clinic in a wheel chair crying from having extreme back pain during that morning.  She was seen by a sixth doctor who ordered her 60g of Toradol for help with pain.  This record of medical care showed the applicant was seen multiple times, her x-rays were normal, MRI was normal, physical therapy was complete, the applicant never secured orthopedic appointment, complications with referral prevented NCV testing and a new referral was reentered for an orthopedic appointment.  The applicant was returned to duty with limitations.

	f.  On 17 March 2008, the applicant was seen again by doctor number five for administrative evaluation services.  The doctor again referred the applicant for neurology and orthopedic consultations and released to her to duty without limitations.

	g.  On 14 April 2008, the applicant was seen in the orthopedic clinic by doctor number seven.  The applicant was diagnosed with back pain and returned to duty without limitations.

4.  On 7 March 2008, the applicant underwent a mental status evaluation that showed her behavior and thought content were normal, that she was fully alert and oriented, that she had an unremarkable mood, that her thinking process was clear, and that her memory was good.  The examiner also determined the applicant was mentally responsible, met retention requirements, and had the mental capacity to understand and participate in any action deemed necessary by her command.

5.  On 20 May 2008, the applicant was notified by her unit commander that action was being taken to separate her from the Army under the provisions of chapter 13, Army Regulation 635-200, for unsatisfactory performance.  She cited the applicant failed to adhere to the course standards due to lack of motivation as the basis for her action.

6.  On 21 May 2008, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to her, and of the effect of a waiver of those rights.  Subsequent to this counseling, she elected not to submit a statement in her own behalf.  

7.  On 22 May 2008, the separation authority approved the applicant’s separation under the provisions of chapter 13, Army Regulation 635-200, and directed the applicant receive an HD.  On 30 May 2008, the applicant was discharged accordingly.

8.  The applicant's DD Form 214 shows she was separated under the provisions of paragraph 13, Army Regulation 635-200, by reason of unsatisfactory performance.  It also shows that at the time, she had completed a total of 11 months and 24 days of creditable active military service.

9.  The applicant provides two letters of support, via e-mail,  from Soldiers in the ranks of private (PV2/E-2) and private first class (PFC/E-3) who both state:

   a.  The applicant consistently participated in physical fitness activities on a regular basis at Fort Huachuca Arizona when they first met.
   b.  Several months into training she began suffering from pain in her lower back which gradually worsened until it impeded her ability to maneuver and stand for long periods.
   
   c.  The applicant tried to acquire medical care for her condition but the medical staff at Fort Huachuca consistently denied her proper medical care.

10.  The applicant provides a letter from Blair Medical Associates Incorporated dated 13 June 2008.  In it, a doctor from the Department of Neurology indicates the applicant is a patient under his care for low back pain and will need long term care with medications, physical therapy, and pain management.

11.  The applicant provides a letter from the Altoona Chiropractic Life Center, Incorporated dated 17 June 2008.  In it the chiropractor indicates:

   a.  The applicant has been a patient of his since 26 December 2007, and he diagnosed her "lumbar segmental and somatic dysfunction and lumbar muscle spasms."
   
   b.  If the applicant follows her treatment as recommended she should receive total remission of symptoms.  (In a second letter, the doctor indicated this period of remission should occur in approximately 3 to 5 weeks.)
   
   c.  He also attached an MRI report wherein the findings showed all five views of the lumbar disc were normal.

12.  The applicant provides a VA rating decision and letter, dated 26 November and 9 December 2008.  These documents show the applicant was granted service connection based on the following conditions:

Thoracolumbar strain (claimed as lumbar segmental and lumbar muscle spasms)
10%
Hypothyroidism
10%
13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  Members separated under these provisions could receive either a GD or an HD.

14.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System and sets forth the 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.

	a.  Paragraph 2-2b states that when a member is being separated by reason other than physical disability, the Soldier's continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that the Soldier was unable to perform his/her duties.

	b.  Chapter 3 contains the policy and outlines the standards for determining unfitness because of physical disability.  It states that 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/her grade, rank, or rating. 

	c.  Paragraph 3-3b(1) states, in pertinent part, that for an individual to be found unfit by reason of physical disability, the Soldier must be unable to perform the duties of his/her office, grade, rank or rating.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the narrative reason for discharge should be changed to reflect “medical reasons” instead of "unsatisfactory performance."  However, the evidence of record confirms that having received extensive medical evaluation for back pain, the applicant was unable to complete her initial entry training during the 11 months of active duty service.  

2.  Subsequent to the applicant’s medical treatment she received that ultimately rendered her fit for duty, her commander recommended separation processing with the issuance of a HD based on his judgment that the applicant would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

3.  In addition, although the applicant was initially placed on temporary limited duty, she was ultimately released to duty without any duty limitations.  Accordingly, there is no evidence that supports her claim she suffered from a condition that rendered her unfit to perform her military duties, or supported separation processing through medical channels.  As a result, there is insufficient evidence to show she was discharged from active duty for medical reasons. 

4.  The evidence submitted by the applicant confirms the VA assigned her a disability rating for service connected medical conditions, and is providing her medical care and benefits based on these medical conditions.  However, a VA decision to provide the applicant a disability rating does not mean this condition was medically unfitting for retention or separation at the time of her separation, or that these conditions supported her processing through medical channels at that time.   

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)                                         AR20110012624





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ABCMR Record of Proceedings (cont)                                         AR20110012624



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