IN THE CASE OF:	  

		BOARD DATE:	    12 September 2013

		DOCKET NUMBER:  AR20130000809 


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, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was discharged for a disability. 

2.  The applicant states:

* he was hurt in the line of duty (LOD)
* his DD Form 214 does not show "disability"
* he is a 50 percent service-connected disabled [veteran] and would like his DD Form 214 to show this
* he was too disabled to complete training
* he filed for a Certificate of Eligibility for a home loan guarantee through the Department of Veterans Affairs (VA); however, his request was denied due to his DD Form 214

3.  The applicant provides:

* memorandum, dated 31 July 2008
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* memorandum, dated 21 August 2008
* DD Form 214
* VA letter, dated 2 March 2012



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 U.S. Army Reserve (USAR) on 15 April 2008 for an 8-year period.  He was ordered to active duty for training on 8 May 2008.

3.  The applicant's complete medical records are not available for review.

4.  A DA Form 2173 shows that on 25 July 2008 and while still in training:

* the applicant reported to sick call at the Consolidated Troop Medical Clinic, Fort Leonard Wood, MO, with complaints of bilateral shin pain with swelling that was becoming severe 
* the nature of his injury showed he had bilateral knee stress fractures, with the right greater than the left, and left talar (foot) stress fracture
* his injury was incurred in the line of duty and a formal LOD investigation was not required 

5.  On 31 July 2008, the approval authority for informal LOD investigations, the Assistant Human Resource Supervisor, Headquarters, 1st Engineering Brigade, U.S. Army Maneuver Support Center and Fort Leonard Wood, Fort Leonard Wood, MO, certified the applicant's LOD had been reviewed for completeness.

6.  On 10 September 2008, the applicant was discharged with an uncharacterized discharge based on a condition, not a disability under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 5-17.  His DD Form 214 shows he completed 4 months and 3 days of creditable active military service and he was assigned the separation program designator (SPD) code "JFV."

7.  The applicant provides a copy of his DD Form 214, DA Form 2173, a memorandum showing an LOD was completed, and a letter from the VA summarizing his benefits.  He also provides a memorandum from his physical therapist at the time which shows he had continuous pain in his left ankle and knees with pain in bilateral shins, and medial tibial plateaus.  The memorandum also shows the applicant had been on convalescent leave for 60 days and his therapist opined the applicant could not return to training and recommended his separation.

8.  Army Regulation 635-200 sets forth the basic authority for the separation
of enlisted personnel.  Paragraph 5-17 states commanders who are special court-martial convening authorities may approve separation under this paragraph 
on the basis of other physical or mental conditions not amounting to disability 
that potentially interfere with assignment to or performance of duty.  A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition.  Members may be separated for physical or mental conditions not amounting to disability, sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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.  A Soldier is physically unfit when a medical impairment listed in Army Regulation 40-501 (Standards of medical Fitness) prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

10.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment; retention; and separation, including retirement.  Chapter 3 gives the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individuals.  Paragraph 3-13 defines conditions of the lower extremities warranting referral to an MEB and does not list stress fractures.

11.  Army Regulation 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations), paragraph 2-11a, states that a separation will be described as entry level with service uncharacterized if processing is initiated while a Soldier is in entry level status.

12.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD code 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.

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.  However, an award of a higher VA rating does not establish an error or injustice on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The 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.  There is no evidence in the available records and he did not provide sufficient evidence that shows at the time of his separation from active duty he was diagnosed with any condition that would have warranted his entry into the PDES.  Medical separation is based on existence of a condition that did not meet retention standards.

2.  Subsequent to his discharge, the VA evaluated him and awarded him service-connected disability compensation.  However, an award of a rating by another agency does not establish error by the Army.  Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  

3.  His narrative reason for separation was assigned based on the fact he had continuous pain in his left ankle and knees with pain in bilateral shins and medial tibial plateaus making him unable to continue with training.  He was discharged under the provisions of Army Regulation 635-200, paragraph 5-17, due to a medical condition - not a disability.  Absent his condition, there was no fundamental reason to process him for discharge.  Therefore, the only valid narrative reason for separation permitted under this paragraph is "Condition - Not a Disability" and the appropriate separation code associated with this discharge is "JFV."

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for VA or other benefits.
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)                                         AR20130000809



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ABCMR Record of Proceedings (cont)                                         AR20130000809



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