BOARD DATE:	  21 November 2013

		DOCKET NUMBER:  AR20130004090 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) by changing the narrative reason for separation to show her disability did not exist prior to service (EPTS).  She also requests, in effect, changing her name back to "R---y" as a result of her divorce and remarriage that occurred subsequent to her discharge from military service.

2.  The applicant states her medical condition did not exist prior to her entry into the military.  She contends the Department of Veterans Affairs (VA) has granted her service-connection and she would like the same consideration shown on her DD Form 214.  She further contends she was unaware of the ability to have her records changed/updated to reflect the proper information.

3.  The applicant provides:

* County Circuit Court Order for Change of Name, dated 6 October 2008
* Marriage License, dated 12 February 2010

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 19 September 1997, the applicant enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) for a period of 8 years.  Her DD Form 4 (Enlistment/Reenlistment Document) shows she enlisted under the last name of "C-----f."

3.  On 18 September 1997, she was discharged from the USAR DEP for the purpose of enlistment in the Regular Army.  The same DD Form 4 shows she enlisted in the Regular Army for a period of 4 years under the last name of
"H----------r."  She completed her initial training and she was awarded military occupational specialty 31U (Signal Support Systems Specialist).

4.  On 29 October 1998, the applicant was examined for chronic right knee pain.  She stated the pain was the result of advanced individual training (AIT) and constant physical training.  She further stated there was no direct trauma and she had not been previously diagnosed with this condition.

5.  A DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) initiated on 
24 March 2000 indicates the applicant was considered by an MEB for chronic right knee pain that was found to be medically unacceptable.  The specific diagnosis was retropatellar pain syndrome.  The approximate date of origin was April 1998, and was indicated as not having existed prior to service.  She was referred to a physical evaluation board (PEB).  The applicant concurred with the MEB findings and recommendation.

6.  A DA Form 199 (Physical Evaluation Board (PEB) Proceedings) indicates the applicant's medical condition was considered by the PEB on 7 April 2000.  The PEB found that her right knee pain had started during AIT without any history of injury or trauma.  It was unresponsive to therapy.  A physical exam revealed she had full range of motion with 5/5 strength.  She also had a mild pes planus deformity.  Based on her medical records and examination, the PEB concluded that there was sufficient evidence to substantiate an EPTS condition for which she was unfit for further military service.  Her condition had not been permanently aggravated by service; but, rather was the result of normal progression.  The 


PEB recommended the applicant be separated from the service without disability benefits.

7.  On 13 April 2000, the applicant non-concurred with the PEB's findings and recommendations and demanded a formal hearing.

8.  On 24 April 2000, the applicant changed her mind and concurred with the PEB findings and recommendations.

9.  On 20 June 2000, the applicant was discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(4), due to a physical disability, EPTS, PEB.  She was given a separation program designator (SPD) code of JFM.

10.  The applicant's service medical records were not available for review.

11.  The applicant's VA medical records were not available for review.

12.  The County Circuit Court Order for Change of Name, dated 6 October 2008, as provided by the applicant, indicates the court granted her a change in name from "H----------r" to "C-----f," incident to her divorce.

13.  The marriage license, dated 12 February 2010, as provided by the applicant, indicates she married a person with the last name of "R---y."

14.  Army Regulation 635-5 (Separation Documents) provides detailed instructions for completing separation documents, including the DD Form 214, which is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  The DD Form 214 is not intended to have any legal effect on termination of a Soldier's service.  It states for item 1 (Name (Last, First, Middle)), enter the name in all capitals.  Compare DA Form 2-1 (Personnel Qualification Record) to contract for possible name change.

15.  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 states that the SPD code JFM is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-40, paragraph 4-24b(4) by reason of disability, EPTS, PEB.

16.  Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by 


active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered physically unfit for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her DD Form 214 should be corrected by:

	a.  changing the narrative reason for separation to show her disability was not EPTS and

	b.  changing her name as a result of her divorce and remarriage that occurred subsequent to her discharge from military service.

2.  The applicant argues that the VA granted her service-connection for her disability and believes her DD Form 214 should now reflect the same determination.  However, she has not provided any documentary evidence showing exactly what determination was made by the VA.

3.  The available evidence shows the PEB had sufficient medical records to conclude that the applicant's mild pes planus deformity, a condition that existed prior to service, was aggravated by physical training in AIT.  Her right knee pain was the result of a normal progression of her deformity.  Her condition had not been permanently aggravated.  The applicant concurred with these findings.  The applicant has not provided any evidence that refutes the findings and recommendation of the PEB.

4.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition as related to service ("service-connected") and affects the individual's civilian employability.  Furthermore, 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 must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.
5.  The available evidence shows that after the applicant was discharged from active duty, she was divorced and had her name changed back to her maiden name.  She subsequently remarried and changed her name to her new married name.  She now wants to have her military records changed to reflect her current name.

6.  Regarding the applicant's new last name, for historical purposes, the Army has an interest in maintaining the accuracy of its records.  The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  In the absence of a showing of material error or injustice, there is a reluctance to recommend that those records be changed.  While it is understandable the applicant desires to now record her new married name in her military records, there is not a sufficiently compelling reason for compromising the integrity of the Army’s records at this late date.

7.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

8.  The applicant is advised that a copy of this decisional document will be filed in his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF).  This should serve to clarify any questions or confusion in regard to the difference in the last name recorded in her military record and to satisfy her desire to have her new last name documented in her AMHRR.

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)                                         AR20130004090



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ABCMR Record of Proceedings (cont)                                         AR20130004090



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