IN THE CASE OF:	

		BOARD DATE:  17 July 2012

		DOCKET NUMBER:  AR20110024722


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 change of his honorable discharge to a medical discharge.

2.  The applicant submitted a 2-page statement, wherein he contends:

* In February 2002, while attending warrant officer training at Fort Rucker, AL, he suffered from fatigue, illness, and other unknown physical issues that resulted in his failing the Army Physical Fitness Test (APFT)
* following his APFT failure he was placed in a remedial physical training (PT) program, which required him to run twice a day
* this excessive running caused his body to break down, resulting in stress fractures in his legs and ankles
* eventually, with sufficient healing time and proper PT guidance, he was able to overcome his deficiencies and pass the APFT
* despite passing the APFT, a member of the school's cadre determined he would remain in the remedial PT program and he would not be placed in a technical certification course
* he complained to the Inspector General (IG) who determined he had been treated unfairly
* following the IG investigation he was constantly scrutinized, counseled, and labeled a substandard Soldier
* on a subsequent APFT he was accused of disobeying an order and cheating on the run portion of the APFT, both of which he denied
* 
a few days later he was presented with papers to be released from the Army, which he signed under duress 
* as a result of his IG complaint, he was rushed out of Fort Rucker and denied any due process that would have otherwise resulted in a medical discharge due to the effects of the school's over-zealous PT program
* he never asked to leave the Army; he was proud of his service
* he permanently damaged his body to show how badly he wanted to serve and now has nothing to show for it

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders 134-2, Military Entrance Processing Station, Tampa, FL, dated
17 July 2001
* Standard Form (SF) 600 (Automated), dated 7 August 2001
* Orders 248-1039-A-773, issued by Headquarters, U.S. Army Aviation Center, Fort Rucker, dated 5 September 2001
* Orders 268-0523, issued by the same headquarters, dated 25 September 2001
* DA Form 4856 (Developmental Counseling Form), dated 8 February 2002
* Radiology Report, Flowers Hospital, Dothan, AL, dated 18 March 2002
* DA Form 4856, dated 4 February 2003
* DA Form 2823 (Sworn Statement), dated 6 February 2003
* SF 600 (Automated), dated 4 March 2003
* A handwritten record of APFT performance
* An extract of his Student Handbook from Company B, 1st Battalion,
145th Aviation Regiment, Fort Rucker, dated 1 May 2001
* A letter from Thompson Family Chiropractic, dated 18 May 2004
* An extract of his Department of Veterans Affairs (VA) rating decision, dated 14 January 2008

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.  On 5 October 1992, the applicant enlisted in the U.S. Army Reserve (USAR).  He completed training in, was awarded, and served in military occupational specialty (MOS) 95B (Military Police).  He attained the rank/grade of specialist (SPC)/E-4.  On 15 December 2000, upon completion of his statutory obligation, he was honorably discharged from the USAR.

3.  On 17 July 2001, he enlisted in the Regular Army for the purpose of attending the Warrant Officer Candidate Course (WOCC) and he entered active duty at Fort Rucker, AL.  He completed the WOCC and on 4 October 2001, he was honorably discharged from the Army for the purpose of accepting an appointment as a warrant officer.

4.  On 5 October 2001, he was appointed as a Reserve Warrant Officer of the Army, in the rank/grade of warrant officer one (WO1)/W-1, and he entered active duty for the purpose of attending the Warrant Officer Technical and Tactical Certification Course (WOTTCC).

5.  On 28 March 2003, he was honorably discharged from the Army under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), for failing to complete his required course of instruction.

6.  His available record is void of the specific facts and circumstances surrounding his discharge from the Army.

7.  His available record does not reveal the existence of any injury or illness that would have warranted his entry into the Physical Disability Evaluation System (PDES).

8.  He provides numerous documents in support of his request.

	a.  He provides three separate medical notes and treatment summaries concerning medical examinations he underwent while attending the WOCC and WOTTCC.  These forms document his leg, ankle, and feet issues; however, none of these forms address his ability or inability to perform within his chosen career field, nor do they recommend his referral to either an MOS/medical retention board (MMRB) or medical evaluation board (MEB).

	b.  He provides two developmental counseling forms and a sworn statement concerning his ability/inability to pass the APFT or follow orders or instructions from the school cadre.  The sworn statement expounds on his chain of command's rationale for keeping him in the remedial PT program instead of placing him in a training class.

	c.  He provides an extract of his student handbook from Company B,
1st Battalion, 145th Aviation Regiment, Fort Rucker, dated 1 May 2001, that documents the standing operating procedures (SOP) in effect at the WOTTCC.

	d.  He provides an extract of his VA rating decision, dated 14 January 2008, that shows he was awarded 60 percent (%) service-connected disability for degenerative osteoarthritis, lumbar spine with history of mild spondylosis.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to an MEB.  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

10.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of disability incurred while entitled to basic pay.

11.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30%.

12.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rated at less than 30%.  Section 1212 provides that a member separated under section 1203 is entitled to disability severance pay.

13.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military 

service.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his honorable discharge should be changed to a medical discharge.  His medical records were not available for review; however, the evidence of record does not show he sustained any injury or illness that warranted his entry into the PDES.

2.  Neither his discharge packet nor the IG investigation is available for review; however, it must be presumed he was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and his rights were fully protected throughout the separation process.

3.  His VA rating decision and awarded percentage of service-connected disability are noted; however, there is no evidence his post-service VA-rated medical issues either occurred while on active duty or were present to such an extent that would have warranted his referral to an MMRB, MEB, or PEB.  It is possible his condition worsened following his separation; however, the Army's PDES is dependent on the existence and severity of a condition at the time of separation.

4.  In view of the foregoing, there is no basis to grant 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 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)                                         AR20100009160



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ABCMR Record of Proceedings (cont)                                         AR20110024722



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