IN THE CASE OF:	  

		BOARD DATE:  5 September 2013

		DOCKET NUMBER:  AR20130002743 


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, to change the characterization of her service  from uncharacterized to honorable and the narrative reason for her discharge to  medical.

2.  The applicant states she was hurt during basic training and no one wanted to find out why her back hurt.  She claims she received an x-ray to determine if there were any broken bones; however, she never received a bone scan or magnetic resonance imaging (MRI).

3.  The applicant provides:

* Developmental Counseling Form
* Orders 111-0356
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders 73-559
* 13 pages of security clearance documentation
* Orders 510001
* DD Form 1966 (Record of Military Processing - Armed Forces of the United States) and associated documents
* Certificate of Live Birth
* Social Security Card
* Personal Driver's License
* High School Diploma
* Certificate of High School Credit
* U.S. Air Force Junior Reserve Officers' Training Corps Certificate of Completion
* a letter from Louisiana Tech University
* DA Form 705 (Army Physical Fitness Test Scorecard)
* DD Form 369 (Police Record Check)
* Orders 425308
* VA Form 21-526 (Department of Veterans Affairs - Veteran's Application for Compensation and/or Pension)
* VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative)
* assorted appointment reminders, medical reports, and correspondence from the Department of Veterans Affairs and a Member of Congress

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Although the applicant lists Dxn Bxxxxxd as her counsel, he did not render a request on the applicant's behalf.

2.  Counsel provides no additional statement. 

3.  Counsel provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code (USC), 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 record shows she enlisted in the U.S. Army Reserve (USAR) on 9 September 2004 and entered initial active duty training on 10 January 2005 for training in military occupational specialty (MOS) 21E (Heavy Construction Equipment Operator).  

3.  The applicant provides the front page of a Developmental Counseling Form which shows that on 13 April 2005 she was counseled by the Reserve Component Liaison Noncommissioned Officer (NCO) due to her lack of performance while in an entry-level status and failure to adapt to the military lifestyle.  The form further states that she had shown a complete lack of motivation.

4.  The complete facts and circumstances surrounding the applicant's discharge from the USAR are not available; however, the applicant provides and her record contains a DD Form 214 which was authenticated by the applicant's signature upon her discharge on 22 April 2005.  She had completed a total of 3 months and 13 days of net active service this period.

5.  The applicant's DD Form 214 further shows in:

* item 24 (Character of Service) "Uncharacterized"
* item 25 (Separation Authority) "AR 635-200, CHAP 11"
* item 26 (Separation Code) "JGA"
* item 27 (Reentry Code) "3"
* item 28 (Narrative Reason for Separation) "ENTRY LEVEL PERFORMANCE AND CONDUCT"

6.  Her service medical records are not available for review with this case.  However, she submitted the following medical documents which all are dated subsequent to her discharge: Nuclear Medicine Report, Radiology Report, Radiology Exam Report, and an Outpatient Consultation Sheet.  These documents show: 

	a.  Probable stress fracture at the right inferior SI joint and bilateral shin splints along the mid and lower portions of both tibias. 

	b.  The lumbar vertebrae were normally aligned and the vertebral bodies and disk spaces maintained normal heights.  Impression:  unremarkable radiographic study of the lumbar spine.

	c.  Normal left knee.  No acute fracture or dislocation of the tibia and fibia.

	d.  MRI of both hip joints was unremarkable.

7.  On 26 September 2007, the applicant was informed her application to the Army Discharge Review Board for a change in the character and/or reason of her discharge was denied.

8.  Title 10, U.S. Code (USC), chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the Army Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

	a.  The objectives of the system are to:

      (1)  maintain an effective and fit military organization with maximum use of available manpower;

      (2)  provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability; and

      (3)  provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected.

	b.  Soldiers are referred to the PDES:

      (1)  when they no longer meet medical retention standards in accordance  with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a medical evaluation board;
      
      (2)  receive a permanent medical profile, P3 or P4, and are referred by an MOS/Medical Retention Board; 
      
(3)  are command-referred for a fitness-for-duty medical examination; and

(4)  are referred by the Commander, HRC.

	c.  The PDES assessment process involves two distinct stages:  the medical evaluation board (MEB) and the physical evaluation board (PEB).  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees.

	d.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

9.  Army Regulation 635-40 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 office, grade, rank, or rating.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

10.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VA Schedule of Rating Disabilities (VASRD).  Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent.

11.  Title 10, USC, 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 percent.  Title 10, USC, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

12.  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims.  It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation.

13.  Title 38, USC, 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.

14.  A member of a Reserve component who is not on active duty or who is serving under a call or order to active duty for 180 days or less begins entry-level status upon enlistment in a Reserve component.  Entry-level status of such a member of a Reserve component terminates (a) 180 days after beginning training if the Soldier is ordered to active duty for training (ADT) for one continuous period of 180 days or more; or (b) 90 days after the beginning of the second period of ADT if the Soldier is ordered to ADT under a program that splits the training into two or more separate periods of active duty.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the specific facts and circumstances concerning the events that led to her discharge from the USAR.  However, the available evidence appears to indicate the applicant lacked motivation and showed an inability to adjust to the military environment.  Subsequently, she was discharged for entry-level performance and conduct with an uncharacterized character of service.  

2.  The applicant's medical records are not available for review with this case.  However, she contends she sustained an injury to her back in basic training and she provides post-service medical documentation in support of this contention.

3.  Referral to the Army PDES requires that a designation of "unfit for duty" be determined before an individual can be separated from the military because of an injury or medical condition.  Here, neither her medical records nor her separation packet which would show what conditions, if any, were unfitting, are available for review.   

4.  Whenever there is a disability, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.  Since the applicant's service medical records are not available, and the evidence the applicant provided fails to show the applicant was physically unfit at the time of her discharge, there is insufficient evidence 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 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)                                         AR20130002743





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ABCMR Record of Proceedings (cont)                                         AR20130002743



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