IN THE CASE OF:	

		BOARD DATE:	    18 December 2012

		DOCKET NUMBER:  AR20120010612 


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 item 28 (Narrative Reason for Separation) of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she was medically retired with 30-percent service-connected disability instead of honorably discharged by reason of "physical condition, not a disability."

2.  The applicant states she was discharged for four injuries she sustained in the Army.  She is currently receiving 20-percent service-connected disability compensation from the Department of Veterans Affairs (VA) for her conditions.  She further states she needs her narrative reason for separation changed in order to receive educational benefits.

3.  The applicant provides:

* VA Rating Decision
* 12-page Disability Benefits Questionnaire
* 5-page Alto Medical Group Examination
* DA Form 2-1 (Personnel Qualification Record)
* 13 DA Forms 4856 (Developmental Counseling Form)
* numerous service medical records, to include sick call slips
* Physical Training and Rehabilitation Program (PTRP) profile



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's records show she enlisted in the Regular Army on 28 October 2003.  She began basic training at Fort Jackson, SC, on 7 November 2003.

3.  The applicant provides numerous DA Forms 5181-R (Screening Note of Acute Medical Care) and Standard Forms 600 (Chronological Record of Medical Care) which show she was repeatedly observed and treated by troop medical clinic and physical therapy personnel throughout the period 8 November 2003 through 6 May 2004, for various ailments to include but not limited to tibial, navicular, and metatarsal stress fractures.

4.  She also provides Developmental Counseling Forms for the period 7 January through 10 May 2004 which assessed her training and motivation while she was assigned to the PTRP to include a PTRP profile, dated 14 January 2004, which shows she was diagnosed with stress fractures.

5.  The applicant provides a memorandum for record, dated 7 May 2004, written by the Commander, Fitness Training Company, 120th Adjutant General Battalion (Reception), Fort Jackson, SC, in which he states the applicant arrived at the PTRP on 7 January 2004 due to tibial, navicular, and metatarsal stress fractures sustained in basic training.  She was treated extensively, yet was failing to make significant progress towards returning to training.  After reviewing her medical records and consulting with her provider, it was determined that the applicant's condition did not require additional medical care or supervision or warrant a medical board.  She was expected to heal fully given more time to do so and it was determined that she would not successfully complete PTRP and was not a good candidate for further rehabilitation efforts.  In light of these circumstances, the commander felt it was in the best interests of the Army and the Soldier to initiate separation proceedings in accordance with Army Regulation 635-200 (Personnel Separations), paragraph 5-17.

6.  In an undated memorandum, the applicant's immediate commander notified the applicant of his intent to initiate separation action against her for other designated physical or mental conditions.  The specific reason was the applicant's extensive treatment for tibial, navicular, and metatarsal stress fractures and the unreasonable prognosis and recovery time which would interfere with her ability to successfully ship to training.  He recommended an honorable discharge.

7.  On 12 May 2004, the applicant acknowledged receipt of the separation notification memorandum and subsequently waived consultation with legal counsel.  She submitted no statements on her behalf.

8.  Subsequent to this acknowledgement and waiver of legal consultation, the applicant's immediate commander initiated separation action against her under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of other designated physical or mental condition.  The immediate commander stated the applicant had been treated extensively for tibial, navicular, and metatarsal stress fractures; however, the prognosis and recovery time would unreasonably interfere with her ability to successfully ship to training.

9.  On 14 May 2004, the intermediate commander recommended approval of the applicant's discharge with an honorable character of service.

10.  On 17 May 2004, consistent with the chain of command's recommendations, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of other designated physical or mental condition with an honorable character of service.

11.  She was accordingly honorably discharged on 26 May 2004 under the provisions of Army Regulation 635-200, paragraph 5-17, based on a physical condition, not a disability.  She was assigned a separation program designator (SPD) code of "JFV."  Her DD Form 214 shows she completed 6 months and 29 days of creditable active service.

12.  There are no accompanying service medical/treatment records or other documentation which show she was diagnosed with an injury, illness, or any medical condition which would have warranted her entry into the Army's Physical Disability Evaluation System (PDES).

13.  The applicant provides a VA Rating Decision, dated 13 February 2012, which shows she was granted a service-connected combined rating of 20 percent for stress fracture in her left and right knee.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and 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.  It provides for medical evaluation boards which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness).

15.  Army Regulation 635-40, paragraph 3-1, provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  To ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation 40-501, chapter 3.  These standards include guidelines for applying them to fitness decisions in individual cases.

16.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  Paragraph 3-14 of this regulation lists the causes for referral to a medical evaluation board (MEB) for fractures as:

	a.  malunion of fractures when, after appropriate treatment, there is more than moderate malunion with marked deformity and more than moderate loss of function;

	b.  nonunion of fractures when, after an appropriate healing period, the nonunion precludes satisfactory performance of duty;

	c.  bone fusion defect when manifested by more than moderate pain and loss of function; and

	d.  excessive callus following fracture when functional impairment precludes satisfactory performance of duty and the callus does not respond to adequate treatment.

17.  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 at least a 
30-percent disability rating.  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 rating of less than 30 percent.

18.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD of "JFV" as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, paragraph 5-17, based on a physical condition, not a disability.

19.  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.  However, the Army rates only conditions determined to be physically unfitting at the time of discharge which disqualifies the Soldier from further military service.  An Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant suffered from tibial, navicular, and metatarsal stress fractures.  However, in the applicant's case, her injuries were expected to fully heal given more time to do so.  As outlined in Army Regulation 40-501, stress fractures are not listed as a reason to refer a Soldier to a MEB.

2.  Therefore, her separation under the provisions of Army Regulation 635-200, paragraph 5-17, due to a medical condition, not a disability, was appropriate.

3.  Requests for changes to the narrative reason for separation are not granted solely for the purpose of making the applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her reason for separation.

4.  Subsequent to her discharge, the VA evaluated her and diagnosed her with a stress fracture in her knees.  It appears the VA also awarded her service-connected disability compensation of 20 percent.  However, an award of a rating by another agency does not establish error by the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.

5.  Her narrative reason for separation was assigned based on her discharge under the provisions of Army Regulation 635-200, paragraph 5-17, due to a medical condition, not a disability.  Absent this condition, there was no fundamental reason to process her for discharge.  The only valid narrative reason for separation permitted under this paragraph is "condition, not a disability" and the appropriate SPD code associated with this discharge is "JFV."

6.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Her narrative reason for separation is correctly shown on her DD Form 214 and she has not provided sufficient evidence to warrant changing this reason.

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)                                         AR20120010612



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ABCMR Record of Proceedings (cont)                                         AR20120010612



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