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.
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