BOARD DATE:	  3 December 2013

		DOCKET NUMBER:  AR20130005464 


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) to show she was medically discharged.

2.  The applicant states she should have received a medical discharge.  The Army unfairly discharged her for not passing the Army Physical Fitness Test (APFT).  She was injured and she did pass the APFT in June.  When she passed the APFT, her APFT card was given to her doctor; however, the Army unjustly removed her APFT card from her military record.  

3.  The applicant provides:

* DD Form 2807-1 (Report of Medical History), dated 7 November 2001
* DD Form 2808 (Report of Medical Examination), dated 7 November 2001
* U.S. Military Entrance Processing Command (USMEPCOM) Form 40-8-R-E (HIV Antibody Testing Acknowledgement Form), dated 
7 November 2001
* DD Form 2005 (Privacy Act Statement - Health Care Records), dated 
7 November 2001
* Standard Form (SF) 507 (Clinical Record), dated 7 November 2001
* DD Form 5501-R (Body Fat Content Worksheet (Female)), dated 
7 November 2001
* DD Form 2807-2 (Medical Prescreen of Medical History Report), dated 
7 November 2001
* Orders Number 009-007, dated 15 January 2002
* SF Form 600 (Chronological Record of Medical Care), dated 16 January 2002
* Volunteer Agreement Affidavit, dated 18 January 2002
* DA Form 6181-R (Screening Note of Acute Medical Care), dated 26 April 2002
* Laboratory Report, dated 26 April 2002
* DA Form 5570 (Health Questionnaire for Dental Treatment), dated 8 May 2002 
* SF 603 (Chronological Record of Dental Care), dated 10 May 2002
* DA Form 4036-R (Medical and Dental Preparation for Overseas Movement), dated 10 May 2002
* Personnel Data, dated 25 June 2002
* Undated memorandum and election of rights
* Orders Number 198-1304, dated 17 July 2002

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 record contains a DD Form 2808, dated 7 November 2001. Her entrance medical examination was conducted at the MEPS in Brooklyn, NY, prior to her enlistment and the examining medical official indicated that:

	a.  her tonsils were moderately enlarged but asymptomatic, she had appendectomy and naval rings scars with no pain, and she had a scar on her breast which was well tolerated.  Additionally, she had mild pes planus (flat feet). The condition was asymptomatic and did not require orthotic inserts.

	b.  she was 64 inches (5 feet 4 inches) tall and weighed 145 pounds.  She exceeded the maximum weight of 137 pounds.  Her maximum body fat percentage was listed at 30% (percent) and her actual body fat percentage was measured as 29.32%.
	c.  her physical profile contained all 1 ratings and she was fully qualified for military service.

3.  She enlisted in the Regular Army on 15 January 2002 and attained the rank/grade of private (PVT)/E-1.

4.  Her record did not contain a separation packet or an APFT card.

5.  She received an uncharacterized discharge on 22 July 2002.  Her DD Form 214 shows she was discharged in accordance with (IAW) Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11 (Entry Level Performance and Conduct).  She completed 6 months and 8 days of net active service.

6.  She provided a DA Form 2807-1, dated 7 November 2001, wherein she indicated that she was currently in good health and:

* she had an appendectomy at age 5
* she had chicken pox at age 9
* She was initially rejected from the Army for failing the Armed Services Vocational Aptitude Battery (ASVAB) on 1 August 2001

7.  She provided a DA Form 2807-2, dated 7 November 2001, wherein she indicated that she had never suffered from foot pain or any other type of pain associated with her joints, back, neck, bones, or musculature.  

8.  On 18 January 2002, she signed a Volunteer Agreement Affidavit, indicating that she agreed to participate in "A Double-Blind Placebo-Controlled Clinical Effectiveness Trial of the 23-Valent Pneumococcal Vaccine Among Military Trainees at High Risk of Respiratory Disease."

9.  She provided DA Form 6181-R, dated 26 April 2002, which shows she was diagnosed with and treated for a medical condition.  Additionally, her height was listed as 64 inches and her weight was listed as 137 pounds.

10.  She provided a DA Form 4036-R, dated 10 May 2002, which shows she was scheduled for an assignment to Germany after she completed advanced individual training (AIT) and she met the medical fitness standards outlined in Army Regulation 40-501 (Standards of Medical Fitness).

11.  She provided a Personnel Data form, dated 25 June 2002, wherein she indicated she was having a problem passing the APFT because of an injury to both of her feet.
12.  She provided an undated memorandum entitled "Proposed Separation Action… [IAW Army Regulation]… 635-200, Chapter 11, Entry Level Status Performance and Conduct."  She acknowledged that:

	a.  she had been advised by her consulting counsel of the basis for the contemplated action to separate her for consecutive APFT failures IAW Army Regulation 635-200, chapter 11, and its effects; of the rights available to her; and the effect of any action taken by her to waive her rights.  She understood that if she had less than 6 years of total active and Reserve military service at the time of her separation IAW Regulation 635-200, that she would not be entitled to have
her case considered by an administrative separation board.

	b.  she understood she could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her.  She further understood that as a result of an issuance of a discharge under other than honorable conditions she could be ineligible of many or all benefits as a veteran under both Federal and State laws and that she could expect to encounter substantial prejudice in civilian life. 

	c.  she had been advised of the basis for the contemplated separation and its effects, the rights available, the effect of a waiver of those rights, and she personally elected not to submit a statement on her own behalf and waived her right to representation by counsel.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 sets policy and provides guidance for the separation of personnel because of unsatisfactory performance or conduct while in an entry-level status.  It states when separation of a member in an entry-level status is warranted by unsatisfactory performance or minor disciplinary infractions as evidenced by inability, lack of reasonable effort, or failure to adapt to the military environment, the member normally will be separated per this chapter.  This separation policy applies to enlisted members of the Regular Army who have completed no more than 180 days active duty on the current enlistment by the date of separation, have demonstrated they are not qualified for retention because they cannot or will not adapt socially or emotionally to military life, cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline; have demonstrated character and behavior characteristics not compatible with satisfactory continued service; or have failed to respond to counseling.



14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states the medical treatment facility commander with 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 a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.  Under the laws governing the Army disability system, Soldiers who sustain or aggravate physically unfitting disabilities must meet the line of duty criteria in that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training (IDT) and the disability must not have resulted from the Soldier’s intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she should have received a medical discharge because she injured both her feet.  She further claims that the assertion that she failed the APFT test is incorrect and that she passed her final APFT but her APFT card was removed from her military record.

2.  Her medical entrance exam did indicate that she had mild asymptomatic pes planus (flat feet); however, the medical official who examined her indicated the condition was not so severe as to require orthotic inserts.  Further, by her own admission on the forms she provided, she had never suffered from any foot pain or injury prior to her enlistment.  It appears her foot condition existed prior to service and was therefore not incurred while she was entitled to basic pay. 

3.  Unfortunately, her record does not contain, nor has she provided evidence to show she passed the APFT.

4.  She did indicate on her personnel data form that she was having a problem passing the APFT because of an injury in both of her feet.  However, her record does not contain, nor has she provided evidence to show, she sought out or received medical treatment for these injuries or what the injury was or when it was incurred.


5.  The proposed separation action/acknowledgement she provided shows she was being separated because she unable to pass her APFT.  If this was incorrect, she had the right to submit a statement on her own behalf to indicate that this statement was untrue.  However, she chose not to submit a statement.

6.  There is no evidence in her records and she did not provide any evidence that shows she suffered from an illness or an injury that rendered her unable to perform the duties required of her grade and military specialty and would have warranted her entry into the Physical Disability Evaluation System.  Therefore, there is an insufficient evidence to grant her 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)                                         AR20130005464





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ABCMR Record of Proceedings (cont)                                         AR20130005464



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