IN THE CASE OF:	  

		BOARD DATE:  5 June 2012

		DOCKET NUMBER:  AR20110021737 


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 that she be promoted to the rank of chief warrant officer two (CW2) and that her discharge be changed to show that she was discharged by reason of physical disability or retired by reason of physical disability. 

2.  The applicant states that she should have been afforded evaluation by a medical evaluation board (MEB) before exiting the service and was not provided the opportunity, which was a clear violation of the medical fitness regulation.  She goes on to state that she was also not afforded the opportunity to be promoted to the rank of CW2 with her peers due to being “flagged” for medical reasons.  She continues by stating that she inquired with three physicians and the MEB physician about receiving an MEB and was told that her condition did not warrant an MEB.  They also informed her that she would not have an issue in coming back in the military; however, once she finished the recovery from her surgery she discovered that she was no longer qualified for enlistment.  She further states that she had had multiple job offers in forward deployed areas but cannot take the jobs due to her being on anticoagulants.  Additionally, the defect in her heart has not healed completely and she is approaching the end of her 6 months of medical coverage and has no resolve through the Department of Veterans Affairs for service connectivity.  

3.  The applicant provides a two-page letter explaining her application and a page listing the enclosures with her application.


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 4 June 2001 for training as a Parachute Rigger.  She completed her basic training at Fort Jackson, South Carolina, her airborne training at Fort Benning, Georgia, and her advanced individual training at Fort Lee, Virginia before being transferred to Fort Bragg, North Carolina for her first duty assignment. 

2.  She remained on active duty through continuous reenlistments and served tours in Italy and Kuwait.  She was promoted to the pay grade of E-6 on 1 January 2006 and on 28 October 2008 she was honorably discharged to accept appointment as a warrant officer in the Army.  She had served 7 years, 4 months, and 25 days of active service.

3.  On 29 October 2008 she was appointed as a U.S. Army Reserve (USAR) warrant officer one (WO1) in the branch of aviation.

4.  On 25 August 2010, while attending flight school at Fort Rucker, Alabama, the Director, U.S. Army Aeromedical Activity at Fort Rucker initiated a recommendation for medical disqualification from further aviation service of the applicant due to not meeting the medical fitness standards for Class 1W flying duties due to a history of migraine headaches.  He indicated that her date of medical incapacitation was 4 August 2010 and forwarded the recommendation to the Human Resources Command (HRC) at Fort Knox, Kentucky.  Her Aviation Career Incentive Pay (ACIP) or flight pay was terminated on 25 August 2010.    The recommendation was approved by HRC on 31 August 2010.

5.  On 27 September 2010, she was eliminated from the Initial Entry Rotary Wing (IERW) Course due to medical reasons (migraine headaches).

6.  On 2 November 2010, a suspension of favorable personnel action was initiated for the purpose of initiating elimination actions against the applicant. 

7.  All of the facts and circumstances surrounding her administrative separation are not present in the available records.  However, her records do show that on  4 November 2010, after consulting with counsel, the applicant waived her option to revert back to her previous enlisted rank and military occupational specialty (MOS).  She also declined to make a statement in her behalf or a statement of rebuttal.

8.  On 15 January 2011, the applicant was honorably discharged under the provisions of Army Regulation 600-8-24, paragraph 2-37, due to failure to complete course of instruction.  She had served 2 years, 2 months, and 17 days of active service as a warrant officer and 9 years, 7 months, and 13 days of total active service and was paid $42,483.30 in separation pay benefits. 

9.  Army Regulation 635-40 (Evaluation for Retention, Retirement, or Separation) states, in pertinent part, that 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 a physical disability incurred or aggravated in service.  

10.  Army Regulation 635-40 also provides that the medical treatment facility commander will provide a thorough and prompt evaluation when a Soldier's medical condition becomes questionable in respect to physical ability to perform duty. 

11.  Army Regulation 40-501 (Standards of Medical Fitness) provides, in pertinent part, that a history of recurrent headaches is a disqualifying factor for accession into the Army.  Soldiers who experience migraine, tension or cluster headaches when manifested by frequent incapacitating attacks will be referred to a neurologist to ascertain the cause of the headaches.  If the headaches are not adequately controlled after 3 months of treatment the Soldier will undergo an MEB for referral to a PEB.  If the neurologist feels that the Soldier is unlikely to respond to therapy, the Soldier can be referred directly to a MEB. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that she should have been processed for medical discharge or retirement under the Physical Disability Evaluation System (PDES) and that she should have been promoted to the rank of CW2 have been noted and appear to lack merit.  

2.  The applicant’s condition at the time disqualified her for further aviation duties and as such made her unqualified for promotion in her MOS of an aviator.  Accordingly, she was not eligible for promotion until she could perform the duties for which she was appointed.

3.  However, her condition did not make her ineligible for retention in the service at the time and she was afforded the opportunity at the time to revert to her former enlisted status and she chose instead to be discharged with severance pay.

4.  While it is unfortunate that she elected to separate at the time and underwent surgery that subsequently prevented her return to service, the applicant had the option at the time to remain in the service and receive treatment for her medical conditions and she chose not to do so. 

5.  In any event, at the time of her separation from the service she was not deemed unfit for all service.  She was only disqualified from further aviation service and she has failed to show through sufficient evidence that her diagnosis at the time was incorrect or that she was improperly discharged at the time.

6.  The available evidence indicates that she was properly discharged  based on the circumstances at the time in accordance with the applicable regulations with no indication of any violations of the applicant’s rights.  Accordingly, there appears to be no basis to grant her request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X ___  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.



      ____________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)                                         AR20110021737





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ABCMR Record of Proceedings (cont)                                         AR20110021737



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