Search Decisions

Decision Text

ARMY | BCMR | CY2011 | 20110024401
Original file (20110024401.txt) Auto-classification: Denied

		IN THE CASE OF:	  

		BOARD DATE:  3 July 2012

		DOCKET NUMBER:  AR20110024401 


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 records to show she was medically discharged with a disability rating and severance pay.

2.  The applicant states she was discharged due to not meeting procurement medical fitness standards without a disability rating.  However, she was awarded a disability rating of 20% by the Department of Veterans Affairs (VA).

3.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty) and VA rating decision in support of her 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 in the Army National Guard (ARNG) on 23 July 1992 for a period of 8 years.

3.  She was ordered to initial active duty for training (IADT) on 27 August 1992.

4.  A U.S. Army Reserve and National Guard Liaison Counseling Form shows the applicant was referred for counseling for a condition (i.e., retropatellar pain syndrome, bilateral) that existed prior to service (EPTS).  On 28 August 1992, the applicant was counseled by Sergeant Major Thomas M. G----, ARNG Liaison Noncommissioned Officer (NCO), concerning a discharge based on her condition that was EPTS.  The applicant indicated that she concurred with the counseling and both the ARNG Liaison NCO and the applicant signed the form.

5.  A DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings), dated 22 September 1992, shows the applicant was diagnosed with retropatellar pain syndrome (bilateral) and patellofemoral instability (bilateral).

	a.  It also shows the condition was EPTS and the applicant did not meet medical retention standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

	b.  The board recommended the applicant be separated for failure to meet medical procurement standards.  The medical approving authority approved the findings of the board.

6.  On 25 September 1992, the applicant was counseled by her commanding officer on options regarding the board's recommendation for separation.  She concurred with the recommendation and requested discharge without delay.

7.  On 30 September 1992, the discharge authority approved the applicant's separation action.

8.  A DD Form 214 shows the applicant entered active duty on 27 August 1992 and that she was released from IADT and discharged as a Reserve of the Army on 7 October 1992 with uncharacterized service.  She had completed 1 month and 11 days of active service this period.  It also shows in:

   a.  Item 25 (Separation Authority):  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-11.


	b.  Item 28 (Narrative Reason for Separation):  Did Not Meet Procurement Medical Fitness Standard No Disability.

	c.  Item 21 (Signature of Member Being Separated):  the applicant signed the document.

9.  In support of her request, the applicant provides a copy of her VA rating decision, dated 2 October 1996, that shows the VA found the applicant's Chondromalacia (left and right knees) disabling and awarded her an overall combined rating of 20%.  This decision also shows this was an EPTS condition but it worsened as a result of service.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5 (Separation for Convenience of the Government), paragraph 5-11, provides that Soldiers who were 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 or active duty for training for initial entry training, may be separated.  Such conditions must be discovered during the first 6 months of active duty and will result in an EPSBD, which must be convened within the Soldier's first 6 months of active duty.

11.  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/aggravated during military service and subsequently affect the individual's civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her records should be corrected to show she was medically discharged with a disability rating and severance pay.

2.  Records show that within one day of entry on IADT, the applicant was diagnosed with knee pain and she was counseled on an EPTS discharge.

3.  Records show an EPSBD was convened within the applicant's first month of IADT and found her condition was medically disqualifying under procurement 


medical fitness standards.  She concurred with the EPSBD proceedings and requested discharge without delay.  Prior to the applicant completing 180 days of active service, the separation authority directed the applicant be discharged.

4.  The applicant's administrative separation under the provisions of Army Regulation 635-200, paragraph 5-11, based on being not medically qualified under procurement medical fitness standards prior to entry into IADT was in compliance with all requirements of law and applicable regulations with no indication of procedural errors which would have jeopardized her rights.  In addition, the type of discharge directed and the narrative reason shown on the applicant's DD Form 214 are appropriate and correct.

5.  The evidence the applicant provides with respect to her VA rating decision was considered.

	a.  She is receiving service connected disability compensation from the VA for a condition that was EPTS, but worsened as a result of service.

	b.  The fact that the VA has awarded the applicant a disability rating for a condition that was EPTS is a prerogative exercised within the policies of that agency.  It does not establish error or injustice in the decision made by the Army to administratively discharge the applicant for not meeting procurement medical fitness standards.

6.  In view of all 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)                                         AR20110024401



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110024401



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

Similar Decisions

  • ARMY | BCMR | CY2013 | 20130010896

    Original file (20130010896.txt) Auto-classification: Denied

    The applicant requests correction of her uncharacterized separation to an honorable discharge due to physical disability. There is neither any available evidence that the applicant became physically unfit for duty as the result of her service nor is there any evidence her service was so meritorious that the present uncharacterized separation is inappropriate. _______ _ X_______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army...

  • ARMY | BCMR | CY1995 | 9506211C070209

    Original file (9506211C070209.TXT) Auto-classification: Denied

    APPLICANT REQUESTS: That her uncharacterized discharge be changed to physical disability. On 20 May 1992, she was discharged under Army Regulation 635-200, paragraph 5-11, for her failure to meet procurement medical fitness standards - no disability. DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded: 1.

  • ARMY | BCMR | CY2009 | 20090021747

    Original file (20090021747.txt) Auto-classification: Denied

    Particularly in light of the combined 60-percent VA rating for a service-connected disability, it is reasonable to state an MEB and a physical evaluation board (PEB) would have reached an equivalent conclusion in terms of medical retirement based on the nexus between the medical conditions and direct military service. A medical proceeding, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within 6 months of the...

  • ARMY | BCMR | CY2007 | 20070018112

    Original file (20070018112.txt) Auto-classification: Denied

    RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 April 2008 DOCKET NUMBER: AR20070018112 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. The applicant requests that her DD Form 214 be corrected to reflect that she entered active duty on 14 March 1991, that she was discharged on 8 May 1991, that she had no sea service and that she was honorably discharged...

  • ARMY | BCMR | CY2013 | 20130008441

    Original file (20130008441.txt) Auto-classification: Denied

    Paragraph 5-11 specifically provides that Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment or who became medically disqualified under these standards prior to entrance on active duty, active duty for training, or initial entry training will be separated. A medical proceeding, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within 6 months of the...

  • ARMY | BCMR | CY2013 | 20130019024

    Original file (20130019024.txt) Auto-classification: Denied

    The EPSBD found that the applicant had an unstable left knee and accordingly recommended her separation from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), paragraph 5-11, separation of personnel who did not meet procurement medical fitness standards. 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 of...

  • ARMY | BCMR | CY2013 | 20130012578

    Original file (20130012578.txt) Auto-classification: Denied

    The applicant requests her 1990 uncharacterized discharge be changed to an honorable discharge. Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. The regulation stated in: a. Paragraph 5-11 - Soldiers who were 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 or active duty for training for...

  • ARMY | BCMR | CY2005 | 20050009926C070206

    Original file (20050009926C070206.doc) Auto-classification: Denied

    The applicant's records contain a copy of a SF Form 88 (Report of Medical Examination), dated 9 May 1991, that was prepared prior to his entrance on active duty (AD) in the Army National Guard (ARNG), which shows that he was medically qualified for enlistment with a 111111 physical profile. The evidence of record shows that the applicant sustained an injury to his left knee, at the age of 15, prior to his entry on AD, EPTS. His DD Form 3647 indicated that he was found unfit for enlistment...

  • ARMY | BCMR | CY2014 | 20140019568

    Original file (20140019568.txt) Auto-classification: Denied

    The applicant requests, in effect, correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she was medically discharged because of a medical disability under honorable conditions. Her record contains a DA Form 4707 (Entrance Physical Standards Board), dated 13 March 1986, which shows the board found her medically unfit for enlistment for her medical conditions, which in the opinion of medical personnel were conditions that existed prior to service...

  • ARMY | BCMR | CY2009 | 20090000245

    Original file (20090000245.txt) Auto-classification: Denied

    Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations) states that for the purposes of characterization of service, the Soldier’s status is determined by the date of notification as to the initiation of separation proceedings. Army Regulation 635-5 (Separation Documents), in effect at the time, governed the preparation of the DD Form 214 for all personnel at the time of their retirement, discharge, or release from the Active Army. The evidence of...