IN THE CASE OF:	  

		BOARD DATE:	  22 March 2012

		DOCKET NUMBER:  AR20110018411 


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 records to show he was medically discharged.

2.  The applicant states he injured his pelvis during air assault training at Fort Leonard Wood, Missouri, and he was honorably discharged for a physical condition, not a disability.  He adds that the Department of Veteran Affairs (VA) granted him disability compensation for his medical condition.

3.  The applicant provides no additional documentary evidence in support of his request.

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 and entered active duty in the Regular Army on 9 June 2003.

3.  An email message, dated 23 January 2004, shows a commissioned officer at the Army Community Hospital, Fort Leonard Wood, reported that the applicant continued to have pain at his left hip (iliac crest/lesser trochanter - the most prominent bone on the pelvis), which indicated a chronic injury at the lesser trochanter and anterior chest, most likely resultant from chronic avulsion injury (an injury in which a body structure is forcibly detached) of the psoas muscle (the psoas assists in straightening the lumbar (lower) spine).  It also shows the applicant was cleared by orthopedics to undergo separation processing under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-17 (Other Designated Physical and Mental Conditions), rather than a Medical Evaluation Board (MEB).

4.  A DA Form 4856 (Developmental Counseling Form) shows the applicant was counseled by a noncommissioned officer, on 27 January 2004, and informed that he was being recommended for an entry level separation because of his lack of ability to attempt any physical exercise and not being able to meet the physical standards for successful completion of training.  The applicant indicated that he agreed with the information provided to him.

5.  A DA Form 4856 shows the applicant was counseled by his commanding officer, on 4 February 2004, and informed that he was cleared by Orthopedics for entry level separation rather than an MEB, counseled on the discharge process, and encouraged to utilize his chain of command if he had questions regarding his separation proceedings.  The applicant indicated he agreed with the information provided to him.

6.  A DD Form 2808 (Report of Medical Examination), dated 14 June 2004, shows the examining physical found the applicant qualified for separation.

7.  On 6 February 2004, the company commander notified the applicant of her intent to initiate separation action to effect discharge under the provisions of Army Regulation (AR) 635-200, chapter 5 (Separation for the Convenience of the Government), paragraph 5-17, based on a chronic injury at the lesser trochanter and anterior crest, most likely resulting from a chronic avulsion injury of the psoas muscle and a poor prognosis for the applicant's completion of training.  The applicant was advised of his rights and of the separation procedures involved.


8.  On 17 February 2004, the applicant acknowledged he had been afforded the opportunity to consult with appointed counsel, or military counsel of his own choice, and he declined the opportunity.  He acknowledged he was advised of the basis for the contemplated separation action and its effects, and the rights available to him.  The applicant waived his rights in writing, did not elect to submit statements in his own behalf, and he placed his signature on the document.

9.  The commander recommended approval of the applicant's separation action.

10.  On 24 February 2004, the separation authority approved the separation action and directed the applicant be discharged under the provisions of
AR 635-200, chapter 5, paragraph 5-17, with a character of service of under honorable conditions.  Accordingly, the applicant was discharged on 16 March 2004.

11.  On 3 November 2006, the applicant submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) to the Army Discharge Review Board (ADRB) requesting upgrade of his under honorable conditions discharge to honorable.  On 16 January 2008, the ADRB determined that the characterization of the applicant's discharge was improper; however, the narrative reason for discharge was proper and equitable.  Accordingly, the applicant was notified of the ADRB's decision, the original
DD Form 214 (Certificate of Release or Discharge from Active Duty) was voided, and he was issued a new DD Form 214.

12.  A DD Form 214 shows the applicant entered active duty on 9 June 2003 and he was honorably discharged on 16 March 2004.  He completed 9 months and
8 days of active service.  It also shows in:

   a.  item 25 (Separation Authority):  AR 635-200, paragraph 5-17; and

	b.  item 28 (Narrative Reason for Separation):  "Physical Condition, Not A Disability."

13.  AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 5, paragraph 5-17, provides when a commander determines that a Soldier has a physical or mental condition that potentially interferes with assignment to or performance of duty, the commander will refer the Soldier for a medical examination and/or mental status evaluation in accordance with AR 40-501 (Standards of Medical Fitness).  A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition.  The commander may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability.

14.  AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.  If a Soldier is found unfit because of physical disability, it provides for referral of the Soldier to an MEB and disposition according to applicable laws and regulations.

15.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  .

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he was medically discharged.

2.  The evidence of record shows that medical personnel determined the applicant's condition did not qualify for referral to an MEB and cleared him for separation processing under the provisions of Army Regulation 635-200, paragraph 5-17.  Accordingly, the applicant's commander initiated separation processing, notified the applicant, and the applicant concurred with the action.  In addition, the examining physician found the applicant qualified for administrative separation prior to the applicant being discharged.

3.  The applicant's administrative separation under the provisions of AR 635-200, paragraph 5-17, based on a physical condition not a disability was in compliance with all requirements of law and applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the type of discharge directed and the narrative reason shown on the applicant's
DD Form 214 are appropriate and correct.

4.  Therefore, in view of the foregoing, there is no basis for granting 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)                                         AR20110018411



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ABCMR Record of Proceedings (cont)                                         AR20110018411



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