IN THE CASE OF:	  

		BOARD DATE:	  21 November 2013

		DOCKET NUMBER:  AR20130006571 


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 records to show she was medically discharged vice discharged by reason of a physical condition, not a disability.

2.  The applicant states:

	a.  She sustained her injuries while in the line of duty.  After 7 months of chronic pain and unsuccessful rehabilitation she was administratively discharged under the provisions of chapter 5-17 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), by reason of a physical condition, not a disability.  She agreed to this discharge under duress after her drill sergeant told her she would be given a dishonorable discharge.  She was told she could receive medical care for her injuries through the Department of Veterans Affairs (VA) after discharge.  

	b.  She was denied medical treatment for her military injuries after she was discharged.  She continued to have chronic pain for those same injuries as well as developing secondary and tertiary injuries.  After many months of physical therapy and several surgeries she still suffers from chronic pain.  She was recently found disabled by the Social Security Administration (SSA) due to the injuries she suffered while in the Army.  

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Separation packet and allied documents
* Military medical records summary
* Post-service civilian medical records
* SSA decision, hearing, and allied documents

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's records to show she was discharged by reason of physical disability. 

2.  Counsel states:

	a.  The applicant joined the Army on 18 November 2002.  Her Military Entrance Processing Station physical, dated 16 October 2002, and related medical records show she was in good health at the time of enlistment and she had no issues with her wrist, feet, legs, knees or joints.  On 23 January 2003, while participating in basic combat training as an E-2, she injured her left knee and ankle.  A military medical follow-up found that she had sustained stress fractures of her left posterior calcaneus (knee) and left posterior talar dome (ankle).  She was placed on crutches and assigned to the Physical Training and Rehab Platoon (PTRP) for occupational therapy to rehabilitate the injuries.  After 3 months in the PTRP, she fractured her right wrist trying to brace from a fall while on her crutches.  After several more months, she was discharged from physical therapy secondary to exhausting all care options.  Though rehabilitation was unsuccessful and she was in chronic pain her chain of command documented her military records to show that she was being recommended for separation due to failure to heal.  She was expected to heal fully given proper time and she was not expected to require additional medical care for her injuries.

	b.  She requested a medical board through her drill sergeants; however, those same sergeants informed her that her injuries did not warrant a medical board.  She asked again and was told that if she pushed the issue she would be given a dishonorable discharge (even though nothing in her military records warranted a dishonorable discharge).  She was also told that when she got out of the Army that she could apply for veteran benefits and medical treatment for her service-connected injuries at the VA.  She was coerced into waiving her right to counsel and she signed the waiver and agreed to accept the separation under "Other Physical or Mental Condition" upon the repeated assurances of her drill sergeants that her medical issues would be taken care of by the VA.  She was also assured that after her injuries healed she could return to the military.  The assurance that she could return to the service after healing was the only reason that she agreed to sign the separation action under the authority and code "Other Physical- not a disability."

   c.  On 10 July 2003, the Army discharged her under separation code "JFV," due to a physical condition not a disability.  No medical board was recommended.  In late July 2003, shortly after she was discharged from the Army, she contacted the VA Hospital in order to begin receiving medical care for her service-connecting stress fractures.  She was told that she was ineligible for medical care.  In August 2003, she again asked the VA Hospital for medical treatment and she was again told she was ineligible for assistance.  Over the next year, her service-connected injuries worsened.  In April 2004, she contacted the Vietnam Veterans of America and they assisted her with filing a claim for disability benefits.  In August of 2004, she was given a “QTC” exam from a 
Dr. H----d H---k.  At the time of the exam, she was pregnant with her youngest child.  She claims that the doctor's attitude toward her changed dramatically when she told him she was a single mother.  The doctor's exam write up appeared to show significant bias towards her and attributed all physical complaints to her pregnancy.  In March 2005, she received X-rays of her right hand, hips, and left tibia/fibula.  The radiologist failed to note the old stress fracture line in the X-ray of her hand, even though it was pointed out as clearly visible on the X-ray by her surgeon in 2013.  He also failed to document the fact that her distal radioulnar joint was not aligned.  The “QTC” doctor found no warrant for a diagnosis for the claimed stress fractures and it was determined that her range of motion was within normal limits.

   d.  In June 2005, she received a VA rating decision denying her all service-connected or non-service connected claims.  She requested a DeNovo review and received a Statement of the case which indicated:

		(1)  Service-Connection for Chronic Left Ulnar nerve not granted because no evidence of confirmed diagnosis or link of that diagnosis to military service.

		(2)  Service-Connection for right hand injury not granted because military medical records show an acute right wrist sprain in May 2003 which required no significant treatment except physical therapy; exam June 2003 and “QTC” examiner both reported no objective signs of residuals of the prior injury were found; and X-rays were negative for a fracture or abnormality.

		(3)  Service-Connection for left leg fracture not granted because military medical records show a minor stress fracture of left heel and ankle talardome on February 2003.  You reported continued pain from that injury and you were discharged from military service.  The “QTC” examiner reported no objective signs of a foot/leg disorder was found except a limp, though you reported chronic ankle pain.  Feet showed no evidence of an abnormal gait.  X-rays found no abnormality.

   e.  Since that original denial from the VA, she continued to receive medical care/treatment for her service-connected injuries.  She has submitted several appeals and new evidence to the VA, but the VA keeps denying her for service-connected ratings - in large part because her military service ended due to a "Physical Condition, not a disability," and because the 2004 “QTC” exam was biased against her.  The VA states that they will continue to deny her claims unless she can prove a current confirmed diagnosis and a link of that diagnosis to military service.  After several years of physical therapy and pain management her primary care doctor recommended that she undergo surgery in an attempt to relieve the pain from her left knee.  On 16 November 2009, she underwent left knee surgery (arthroscopic lateral release followed by open tibial tubercle and open patellfemoralligament reconstruction based upon diagnosis of lateral instability of left patella).  This first surgery was unsuccessful.  On 16 August 2010, she underwent a second surgery on her left knee (removing scar tissue and manipulation).  On 15 June 2011, she underwent surgery on her right knee (diagnosis of extensor realignment right knee - secondary to left knee injury and resultant gait issues).  On 7 January 2013, she underwent surgery on her right elbow and wrist to repair carpal and cubital tunnel issues resulting from her right wrist injury sustained in the military. 

   f.  In 2001 [sic], she filed for Social Security Disability on the basis that her prior military injuries and subsequent injuries secondarily caused by the initial injuries were precluding her from working.  In February 2013, after an Administrative Law hearing, she was rated as 100% disabled by the SSA.  A transcript of the Social Security Hearing, dated 1 February 2012, shows her medical issues stemmed from the knee injury she sustained while in the military that was never effectively redressed by the Army.  Furthermore, the transcript shows that she had three different knee surgeries to fix the knee but at the time it was not fixed and/or stable.  It also shows her numerous medical issues can be linked to her muscular skeletal problems incurred during service and the resulting chronic pain she suffers from those problems.  It is important to highlight that the testimony of Dr. W---e was key to the Administrative Law Judge's 100% disability and un-employability determination for the applicant, even though Dr. W---e was hired as an opposing expert for the SSA to disprove her claim.

   g.  He (counsel) has enclosed several letters from a few of the applicant's primary care physicians, the “ARNP,” her original Physician Assistant, and her Physical Therapist all support the contention that more likely than not the current wrist, knee, and ankle injuries are directly related and resulted from stress fractures she sustained in 2003 while in the Army. 

   h.  In summary, she was discharged under Army Regulation 635-200, paragraph 5-17, due to a physical condition not a disability, and she was assigned the separation code of "JFV."  Based on Fitness Training Company (FTC) Captain D----l F----r's opinion her condition did not require additional medical care or supervision and she was expected to heal fully given more time to do so.  In actuality and based upon the evidence presented herein, her injuries have required extensive and ongoing medical care.  The injuries have not healed despite years of physical therapy and multiple surgeries.  Her DD Form 214 should be corrected to reflect that she was separated from the military due to injuries sustained during training and that her separation code be changed to reflect a permanent disability.  Amendment of her separation code will greatly assist her in obtaining medical care from the VA for her in-service-connected injuries.

3.  Counsel did not provide additional evidence. 

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 U.S. Army Reserve (USAR) for 8 years on 28 October 2002.  She entered active duty on 18 November 2002 and she was assigned to Company D, 1st Battalion, 28th Infantry, Fort Jackson, SC for training.

3.  Her records contain a DA Form 2173 (Statement of Medical Examination and Duty Status), dated (signed) 8 April 2003, that shows in January 2003, while participating in basic combat training, she developed left knee pain and left heel pain.  She was treated in an outpatient status at Moncrief Army Community Hospital.  

4.  It appears that in February 2003 she was reassigned to the PTRP of the FTC, 120th Adjutant General Battalion.  Soldiers who cannot complete basic combat training or advanced individual training because of injury but still have the potential to complete training, do not just sit around waiting to heal; they go to the PTRP. 

	a.  The PTRP or the FTC puts these injured Soldiers through the hard work of rehabilitation, conditioning, and military education that can get them back on the graduation trail.  The FTC has a three-fold mission that addresses both the physical and educational aspects of returning Soldiers to training units.  

	b.  The first two parts of the mission are physical--to provide an environment conducive to rehabilitation and recovery and to improve each Soldier’s physical fitness level.  The FTC physical therapists or the company commander assign Soldiers to one of three progressive exercise modules--cardio-weight room (which can also include pool therapy), walk-run track or warrior physical training. They have to complete an Army Physical Fitness Test before they go back to their training.  The last part of the FTC mission is educational, to improve each Soldier’s Army knowledge and skill level.

5.  On 25 February 2003, she was counseled by her FTC drill sergeant regarding a recommendation for convalescent leave and her conduct during this leave.  She was authorized leave through 4 April 2003.  

6.  Her records contain a DA Form 2173, dated (signed) 11 June 2003 that shows during April 2003, while in the PTRP, she tried to brace a fall with her right hand when she sustained an injury to her wrist.  This form shows there was no objective finding to date to explain her pain and that medical evaluation continues.  

7.  Her records contain a Standard Form 600 (Chronological Record of Medical Care).  The entry, dated 29 May 2003, shows she reported pain when her wrist was in certain positions; she was put on medications and was counseled on treatment and follow-up.  A second entry, dated 2 June 2003, shows she reported pain in her right wrist.  Upon examination, there was a diagnosis of right wrist strain/sprain with no significant findings. 

8.  On 9 June 2003, her FTC drill sergeant counseled her regarding the possibility of separation because she had not rehabilitated from her injury within a reasonable amount of time.  The counselor indicated that she was able to remain motivated throughout her time in the PTRP and she took advantage of the opportunities made available to her.

9.  On 23 June 2003, the applicant's immediate commander submitted a statement for record wherein he stated: 

	a.  [Applicant] arrived at the PTRP on 10 February 2003 due to calcaneal and talar stress fracture sustained in basic combat training.  She continued to have pain with physical activity and thus has not made continued progress towards increasing her function and returning to training. 

	b.  He reviewed her medical records and spoke with her physical therapist at length about that injury and future potential.  She had been discharged from physical therapy secondary to exhausting all care options.  Her condition does not require additional medical care or supervision, nor warranted a medical board.  She is expected to heal fully given more time to do so.  

	c.  It was the professional opinion of her immediate and battalion commanders that she would not successfully complete the PTRP and she was not a good candidate for further rehabilitation efforts.  In light of these circumstances, he felt it was in the best interests of the Army and the applicant to proceed with separation under paragraph 5-17, Army Regulation 635-200. 

10.  On 24 June 2003, the applicant's immediate commander notified the applicant of his intent to initiate separation action against her under Army Regulation 635-200, paragraph 5-17, by reason of "Other Designated Physical or Mental Conditions."  The immediate commander stated the applicant had been treated extensively for calcaneal and talar stress fracture; however, her prognosis and recovery time will unreasonably interfere with her ability to successfully complete training.  He recommended an honorable discharge.

11.  On 24 June 2003, the applicant acknowledged receipt of the separation notification memorandum.  She indicated she understood the basis for the contemplated separation action and its effects, the rights available to her, and the effect of a waiver of her rights.  She also acknowledged that she had been given the opportunity to consult with counsel but she did not desire to consult with military or civilian counsel.  She further acknowledged she understood that she may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to her.  She elected not to submit a statement on her own behalf.  

12.  Subsequent to this acknowledgement and 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 conditions.  Her battalion commander recommended approval with the issuance of an honorable discharge.

13.  On 26 June 2003, 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 discharge.  The applicant was accordingly discharged on 10 July 2003.

14.  Her DD Form 214 shows she was honorably discharged on 10 July 2003 under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of "condition, not a disability."  This form shows she completed 7 months and
23 days of creditable active military service.  Item 26 (Separation Code) of her DD Form 214 shows the entry "JFV."

15.  The applicant provides:

	a.  A screening note of acute medical care that shows on 23 January 2003, she complained of pain in her knees and lower back.  She stated she felt grinding and heard a pop when she extended her knees.  The pain had been radiating down to her left leg for the past 3 weeks. 

	b.  A medical record supplement, dated 27 January 2003, that shows she had complained of left knee pain and reported an injury that occurred while running.  She felt a pop and swelling.  Upon examination she was assessed with a stress fracture.   

	c.  A chronological record of medical care, dated 18 February 2003, that shows she was moved to the PTRP due to an injury while in training.  

	d.  A chronological record of medical care, dated 18 February 2003, that shows she followed-up and also complained of right hip pain.  Tenderness had persisted and the diagnosis was that of a bone stress injury.  A radiological examination report of bone scan stated no hip lesions were seen and no significant knee lesion was seen.  There is a focal hot uptake to the left posterior calcaneus consistent with stress fracture.  There is a mild focal uptake at the left posterior talar dome consistent with a mini stress fracture.  

	e.  A chronological record of medical care, dated 24 February 2003, that shows she followed-up regarding her knee injury.  It also shows the entries "bone scan, tenderness, stress fracture left calcaneus and left talar dome, and tendonitis right hip flexars; continue crutches until no pain."  

	f.  A DA Form 5181-R (Screening Note of Acute Medical care), dated 10 April 2003, that shows her chief complaint was extremity joint pain for one month and right wrist pain radiating to her elbow. 

	g.  Two chronological records of medical care, dated 22 and 28 April 2003, that show foot pain and tenderness consistent with a stress fracture. 

	h.  Radiological Examination Report, dated 28 April 2003, that shows the entries "Finding:  compared to study of February 2003, the previous left calcaneus lesion is healed; the left talar lesion is unchanged"; "very minimal right posterior calcaneus uptake is noted that was present before and at that time considered insignificant and is unchanged at this time"; and “no other significant lesions seen." 

	i.  Two progress notes, dated 2 and 6 May 2003, that show right wrist sprain, unable to tolerate axial load of wrist, strong desire to return to duty, expressed concern with chapter and medical board. 

	j.  A favorable decision, dated 9 February 2012, from the SSA declaring her disabled for various impairments including degenerative joint disease of the knees status post surgery, diabetes mellitus with diabetic peripheral neuropathy, cervical degenerative disc disease, carpal tunnel syndrome, chronic pain syndrome, irritable bowel syndrome, migraine headaches, obesity, hypertension, and right cubital tunnel syndrome.  

16.  According to the National Institutes of Health website, a stress fracture is an overuse injury.  It occurs when muscles become fatigued and are unable to absorb added shock.  Eventually, the fatigued muscle transfers the overload of stress to the bone causing a tiny crack called a stress fracture.  Pain with activity is the most common complaint with a stress fracture.  This pain subsides with rest.  The most important treatment is rest.  Individuals need to rest from the activity that caused the stress fracture, and engage in a pain-free activity during the weeks it takes most stress fractures to heal.  If the activity that caused the stress fracture is resumed too quickly, larger, harder-to-heal stress fractures can develop.

17.  Army Regulation 635-200 states commanders specified in paragraph 1–19 may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement or Separation) and excluding conditions appropriate for separation processing under paragraph 5–11 or 5–13 that potentially interfere with assignment to or performance of duty.  Such conditions may include, but are not limited to, chronic airsickness, chronic seasickness, enuresis, sleepwalking, dyslexia, severe nightmares, claustrophobia, and gender transformation.

18.  When a commander determines that a Soldier has a physical or mental condition that potentially interferes with assignment to or performance of duty, the commander will refer the Soldier for a medical examination and/or mental status evaluation in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  Separation processing may not be initiated under this paragraph until the Soldier has been counseled formally concerning deficiencies and has been afforded ample opportunity to overcome those deficiencies as reflected in appropriate counseling or personnel records. 

19.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System 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.  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. 

	a.  Paragraph 3-1 states the mere presence of an 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 their office, grade, rank, or rating.

	b.  Paragraph 3-1d states initial enlistment, induction, or commissioning physical standards are not relevant to deciding unfitness for continued military service.  Once a Soldier has been enlisted, inducted, or commissioned, the fact that the Soldier may later fall below initial entry physical standards does not, in itself, authorize separation or retirement unless it is also established that the Soldier is unfit because of physical disability.  

20.  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 SPD code 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 condition, not a disability.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows, while in training, the applicant complained of pain related to a stress fracture.  She was granted convalescent leave - a period of rest - to allow her condition to improve/heal.  She was also transferred to the 

Physical Training and Rehabilitation Platoon, where medical care is available, with doctors and teams of hospital personnel to assure she was well-cared for and getting the medical attention she needed.  While there she also complained of pain related to a wrist injury. 

2.  Stress fractures heal when stress stops.  Sometimes a Soldier in training is allowed to heal and rehab while on active duty and then restart initial entry training.  Other times when there is a prolonged rehab, a Soldier is discharged.  Those were medical conditions not amounting to a physical disability that interfered with the performance of her duties.  She had multiple visits to the medical clinic and physical therapy and she received a thorough medical evaluation and an overly generous recovery time with no claimed improvement.  Accordingly, her chain of command initiated separation action against her. 

3.  Contrary to her argument that she agreed to her discharge under duress, the available evidence shows she had been properly counseled, notified, and advised of her rights.  She elected not to consult with counsel.  She acknowledged her understanding of the proposed action and she elected not to submit a statement on her own behalf.  There is no evidence to show she was under duress during her separation processing.

4.  Various medical conditions related to a Soldier's extremities may cause referral to a medical evaluation board as described in chapter 3 of Army Regulation 40-501.  However, in the applicant's case, her stress fracture and resultant pain is not listed as a condition which would have necessitated her referral to a medical board.  Furthermore, her commander, after consulting with the physical therapist at length, opined that the applicant would not successfully complete PTRP and she was not a good candidate for further rehabilitative efforts.

5.  Her narrative reason for separation was assigned based on the fact that she was separated 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 the applicant 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."  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 provided insufficient evidence to warrant changing this reason.


6.  The Army and the SSA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and an award of a rating by another agency - the SSA in this case - do not establish error by the Army.  Operating under different laws and their own policies, the SSA does not have the authority or the responsibility for determining medical unfitness for military service.  

7.  The ABCMR does not grant requests for change of narrative reason for separation solely for the purpose of making the applicant eligible for veteran benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her reason for separation.  The fact that the VA has denied the applicant's benefits has no bearing on her discharge from the Army.  The granting of veteran benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for such benefits should be addressed to the VA.

8.  There is insufficient evidence to grant her the requested relief.  There does not appear to be an error or an injustice in his case.  Neither the applicant nor her counsel submitted substantiating evidence or an argument that would show an error or injustice occurred in her case.  Additionally, it has now been over 
10 years since the applicant was separated.  An arbitrary ruling in her favor, without a preponderance of the evidence would cause prejudice to the Government.  In view of the foregoing, there is insufficient evidence to grant her 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)                                         AR20130006571



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ABCMR Record of Proceedings (cont)                                         AR20130006571



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