IN THE CASE OF:	  

		BOARD DATE:	  6 March 2014

		DOCKET NUMBER:  AR20130008441 


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 her character of service as honorable due to a medical condition vice uncharacterized.

2.  The applicant states:

	a.  She was discharged under the pretense of a prior existing condition which she did not have.  The condition was positive tenderness elicited on palpitation of the plantar fascia.  She was not provided any laboratory [results] or x-rays as identified on her DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings).

	b.  She filed a Department of Veterans Affairs (VA) claim that clearly shows she had stress fractures of the 1st and 2nd metatarsals of the right foot which she was rated as service-connected for.  She feels the Army dealt with her unjustly, providing her no real medical treatment so that she could heal properly and continue in her training cycle.  They felt she was of no use and railroaded her out of the service.

	c.  All she is asking for is just treatment and to be provided a proper discharge under honorable conditions.  The VA findings show that because her fractures were not properly diagnosed and were allowed to go untreated, they caused damage to her tendons that cannot be repaired.

3.  The applicant provides:
* her DD Form 214
* a memorandum with two endorsements
* two letters
* a VA Rating Decision
* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States)
* DA Form 4707
* Standard Form (SF) 93 (Report of Medical History)
* SF 88 (Report of Medical Examination)

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 provides and her records contain an SF 93, dated 29 August 1994, wherein it shows she stated she was in good health, was on no medication, and had no allergies.  An SF 88, dated 29 August 1994, shows that on that date the examining physician found she was medical acceptable for enlistment in the U.S. Army.

3.  She enlisted in the Regular Army (RA) on 21 November 1994.  She was assigned for basic combat training (BCT) to the 1st Battalion, 26th Infantry Regiment, Fort Jackson, SC.

4.  On 27 March 1995, she went before an EPSBD at Moncrief Army Community Hospital (MACH), Fort Jackson, SC.  The board found she had been seen at MACH for complaints of discomfort of her right foot since the 3rd week of BCT and she had complained of increased symptoms with physical activities.  An examination showed there was "positive tenderness elicited on palpation of the plantar fascia" and she was diagnosed with plantar fasciitis of the right foot.   

5.  The EPSBD determined the plantar fasciitis existed prior to service (EPTS) and was not service aggravated.  The board recommended the applicant be separated for failing to meet medical procurement standards in accordance with chapter 3, Army Regulation 40-501 (Standards of Medical Fitness).

6.  On 30 March 1995, she was informed of the board findings.  She was counseled by her immediate commander of her option to request retention on active duty or separation from the RA due to failing to meet medical standards that existed when she entered active duty.  Her commander also counseled her that she had the right to consult with legal counsel and that if she was retained on active duty she might be involuntarily reclassified into another military occupational specialty based on her medical condition.  

7.  The DA Form 4707 shows she had the option to:

* concur with the board proceedings and request to be discharged from the Army without delay
* concur with the board proceedings and request to be retained on active duty
* disagree with the board proceedings because her condition was not EPTS (medical evidence required) and request her case be returned to the medical approving authority for reconsideration
* disagree with the board proceedings because her condition was not disqualifying on entry and was aggravated by service (medical evidence required) and request her case be returned to the medical approving authority for reconsideration 

8.  On 30 March 1995, the applicant checked the appropriate block on the DA Form 4707 to indicate she concurred with the board findings and recommendations and she requested to be discharged from the Army without delay.

9.  Her immediate commander and senior commander subsequently recommended approval of the applicant's request for separation and the approving authority subsequently approved the applicant's request.  On 7 April 1995, she was discharged accordingly.

10.  The DD Form 214 she was issued shows she was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-11, for failure to meet procurement medical fitness standards with an uncharacterized character of service.  She completed 4 months and 17 days (137 days) of creditable active service.

11.  The applicant provides a VA Rating Decision, dated 14 July 1995, wherein it stated, in part:
	a.  She was granted service-connected disability evaluated at 0 percent for post stress fractures of the 1st and 2nd metatarsals of the right foot and service-connection for shin pain of the legs was denied.  Service-connection may also be granted for conditions which were EPTS if the condition was shown to have been aggravated by service.  

	b.  Her service medical records showed she sustained a stress fracture of the 1st and 3rd toes of the right foot which healed with no current findings of limitation of motion or functional impairment…Accordingly, a non-compensable evaluation was assigned.

	c.  She went to the medical clinic on 14 December 1994, in her 3rd week of BCT, with complaints of right foot pain of more than 1 and 1/2 half weeks in duration and the pain worsened with marching.  X-rays showed a fracture of the 3rd metatarsal of the right foot.  She was given medication for pain, advised to try ice packs with daily elevation, and given crutches.  On 18 January 1995, she was referred to the podiatry clinic and fractures of the 1st and 3rd metatarsals were noted on her x-ray.

	d.  She was placed on convalescent leave for 4 weeks.  When she returned on 14 February 1995, the painful symptoms continued and she was diagnosed with post fracture status of the 1st and 3rd metatarsals.  The examining physician noted the condition was EPTS and recommended she be separated for failing to meet procurement standards.  

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-11 specifically provides that Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment or who became medically disqualified under these standards prior to entrance on active duty, active duty for training, or initial entry training will be separated.  A medical proceeding, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within 6 months of the Soldier's initial entrance on active duty, that the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at that time, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501.  The characterization of service for Soldiers separated under this provision of the regulation will be uncharacterized if the Soldier is in an entry-level status.  Entry-level status is defined as the first 180 days of continuous active duty.

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.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms that in March 1995 an EPSBD found the applicant's condition of plantar fasciitis existed prior to her entry into military service and recommended she be discharged for failing to meet medical procurement standards.  

2.  After being counseled as to her options, to include the option to request retention on active duty, she concurred with the recommendation of the EPSBD and requested discharge from the RA. 

3.  She also had the option to disagree with the board proceedings because her condition was not EPTS, or because her condition was not disqualifying on entry and was aggravated by her service, and to provide medical evidence to support either option.  However, she concurred with the board findings that her condition was EPTS.  

4.  Her request for discharge was approved and on 7 April 1995, she was discharged accordingly.  As she was separated while she was in an entry-level status after completing only 137 days of active service her DD Form 214 appropriately shows she received an uncharacterized character of service.  

5.  Her administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized her rights.  A service-connected rating by the VA does not indicate an error on the part of the Army.  Operating under its own rules, the VA does not have authority or responsibility for determining physical fitness for military service.  

6.  An uncharacterized character of service is not meant to be a negative reflection of a Soldier's military service.  It merely means the Soldier has not served on active duty long enough for his or her character of service to be rated.  

7.  In view of the foregoing, there is no basis for granting 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)                                         AR20130008441





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ABCMR Record of Proceedings (cont)                                         AR20130008441



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