BOARD DATE:	  8 May 2014

		DOCKET NUMBER:  AR20130013283 


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 entry-level separation to show she was medically discharged.

2.  The applicant states:

	a.  Her former noncommissioned officer in charge (NCOIC) forged her commander's signature on her permanent physical profile which required her to see a medical board that resulted in her recommendation for an entry-level separation regardless of the fact that her orders exceeded 180 days.

	b.  She was denied access to the Judge Advocate General (JAG).  She filed an Inspector General (IG) complaint and was told they didn't handle the case.  She consulted the Army Discharge Review Board (ADRB).

3.  The applicant provides documentation from her time in service as well as select service and post-service medical records and correspondence from the Department of Veterans Affairs (VA).

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 contain a DD Form 2808 (Report of Medical Examination), dated 4 March 2008, showing she was medically examined and found to be fully qualified for service.  The applicant enlisted in the U.S. Army Reserve (USAR) on 4 March 2008.

3.  The evidence shows the applicant entered active duty for training (ADT) on 20 August 2008.  Her records contain an informal line-of-duty determination, dated 17 December 2008, that determined the applicant's back and hip pain sustained during a ruck march approximately 2 months prior was in the line of duty.

4.  Her records also contain the following documentation:

	a.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was released from active duty for training (REFRADT) on 26 January 2009 for completion of required active service.  She completed 5 months and 7 days of net active service during this period.

	b.  A memorandum from the Chief, Accessions Division, U.S. Army Reserve Command (USARC), dated 21 January 2009, states the Fort Bragg Army Reserve Liaison was authorized to release the applicant from active duty due to a temporary medical condition.  It noted the applicant was a basic combat training (BCT) graduate; however, her unit would initiate separation action in accordance with Army Regulation 135-178 (Enlisted Administrative Separations), chapter 8, if she did not return to ADT by 30 June 2009.

	c.  A DA Form 3349 (Physical Profile), dated 9 July 2009, shows she was issued a temporary physical profile for a bilateral hip injury with an expiration date of 15 September 2009.

	d.  A memorandum from her commander to the USARC G-1, dated 29 July 2009, requested an extension of the applicant's 30 June 2009 suspense to return to ADT to 18 September 2009.

	e.  A memorandum from the Chief, Accessions Division, USARC, dated 3 August 2009, states the applicant was scheduled for surgery on 7 August 2009 with an expected clearance for training of 15 September 2009.  It noted the applicant was a BCT graduate; however, her unit would initiate separation action in accordance with Army Regulation 135-178, chapter 8, if the applicant did not return to ADT by 31 March 2010.

7.  On 24 June 2010, the applicant received an uncharacterized discharge from the USAR.

8.  The applicant provided additional documentation in support of her request.

	a.  Medical records show she was treated for blisters on her feet, a cut on her toe, pain in her left knee, back and hip pain, and a foreign body in her right eye, among other reasons.

	b.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 12 December 2008, shows the applicant incurred back and hip pain injuries during BCT and aggravated these injuries when she was assigned for advanced individual training (AIT).  She could not meet the minimum requirements to graduate from AIT due to her injuries.

	c.  Numerous military and civilian treatment records and physical profiles relate to her surgery and treatment for hip pain.

	d.  A University of Colorado Hospital Work Status Form, dated 10 March 2010, shows the applicant could return to work with no restrictions whatsoever effective 10 March 2010.

	e.  A memorandum from her USAR company commander, dated 17 March 2010, requested an AIT quota for the applicant for the next available training cycle.

	f.  A DA Form 4187 (Personnel Action) shows her USAR company commander advanced the applicant to the rank/grade of specialist/E-4 effective 8 April 2010.

	g.  A letter from the Commander, Denver Military Entrance Processing Station, dated 23 April 2010, informed the applicant that as a result of her recent medical examination, she was found medically disqualified for entry in the Armed Forces of the United States due to her history of chronic disabling bilateral hip pain and receipt of a 30-percent VA disability rating.

	h.  A DA Form 3349, dated 4 May 2010, shows she was issued a permanent physical profile rating of 3 for bilateral hip pain.

	i.  Her VA Rating Decisions show she was awarded service-connected compensation for torn ligaments in her left and right hips.

9.  Her records are void of any evidence and she has not provided any evidence showing:

	a.  she completed any other period of active service between her release from BCT and when she was discharged from the USAR;

	b.  she was denied access to JAG, filed an IG complaint and was told they didn't handle the case, or that she consulted the ADRB; or

	c.  her former NCOIC forged her commander's signature on her permanent physical profile which required her to see a medical board that resulted in her recommendation for an entry-level separation regardless of the fact that her orders exceeded 180 days.

10.  Army Regulation 135-178 establishes the policies, standards, and procedures governing the administrative separation of enlisted Soldiers of the Army National Guard and the USAR.  Chapter 8 provides that a Soldier may be separated under this chapter while in an entry-level status when it is determined that the Soldier is unqualified for further military service by reason of unsatisfactory performance or conduct (or both) as evidenced by inability, lack of reasonable effort, failure to adapt to the military environment, or minor disciplinary infractions.  The service of a Soldier who is separated under this chapter will be uncharacterized.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for separation of enlisted personnel.  Chapter 4 provides for the separation or release from active duty upon termination of enlistment and other periods of active duty or ADT.  Specifically, individuals of the USAR ordered to ADT who completed less than 180 days of continuous active duty will have their service uncharacterized, even though they completed their initial ADT.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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 or her office, grade, rank, or rating.

	a.  Under the laws governing the Army PDES, Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and/or severance pay benefits:

* 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)
* 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

	b.  Chapter 3 provides that the mere presence of 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 his or her office, grade, rank, or rating.

	c.  Paragraph 3-2b provides that when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.  The presumption of fitness may be overcome if the evidence establishes that the Soldier was, in fact, physically unable to adequately perform the duties of his or her office, grade, rank, or rating for a period of time because of a disability.

	d.  Paragraph 3-3b(1) provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank, or rating.

13.  Army Regulation 40-501 (Standards of Medical Fitness) 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, a physical evaluation board (PEB) rates all disabilities using the VA Schedule of Rating Disabilities (VASRD).

	a.  Medical evaluation boards (MEB's) are convened to document a service member's medical status and duty limitations insofar as duty is affected by the member's medical status.  Situations that require consideration by an MEB include those involving Reserve Component personnel serving on ADT or IDT whose fitness for further military service upon completion of hospitalization is questionable and those who require hospitalization beyond the termination of their tour of duty.  Consideration by an MEB also includes those involving a Reserve Component member who requires evaluation because of a condition that may render him or her unfit for further duty.

	b.  PEB's are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and a recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

14.  Title 10, U.S. Code, 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, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent.

15.  The VA Schedule for Rating Disabilities (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.

16.  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.  However, an award of a 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.

18.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  Paragraph 2-9 addresses the burden of proof and states the ABCMR begins its consideration of each case with the presumption of administrative regularity – which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence present in the military records and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her records should be corrected by changing her uncharacterized entry-level discharge to a medical discharge was carefully considered.

2.  The evidence clearly shows the applicant incurred injuries during BCT and aggravated them when assigned for AIT.  She was not able to meet the minimum requirements to graduate from AIT due to her injuries.  Her records contain an informal line-of-duty determination, dated 17 December 2008, that determined her back and hip pain sustained during a ruck march approximately 2 months prior was in the line of duty.

3.  A DA Form 3349, dated 4 May 2010, shows she was issued a permanent physical profile rating of 3 for bilateral hip pain.  In spite of this fact, there is no indication in the applicant's records that she was subsequently referred to an MEB or a PEB as required by Army policy.

4.  It appears the applicant's contention that she was discharged without evaluation of her in-the-line-of-duty medical condition is supported by the evidence of record.  

5.  In view of the foregoing and in the interest of equity, the applicant should be issued invitational travel orders and afforded the opportunity to have her medical fitness determined by an MEB/PEB for her diagnosed bilateral hip injury based on the results of the line-of-duty investigation.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X__  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by offering her the opportunity to undergo a physical evaluation to determine her fitness for retention in the Army:

   a.  by directing the Office of The Surgeon General to contact her and arrange, via appropriate medical facilities, a physical evaluation; and 

   b.  if appropriate, by referral to an MEB and an informal PEB. 

2.  The Office of The Surgeon General is directed to use appropriate invitational travel orders to accomplish the physical evaluation and, if necessary, the MEB and PEB. 

3.  In the event that a formal PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of her case by a formal PEB.  All required reviews and approvals will be made subsequent to completion of the formal PEB. 

4.  In the event it is determined that the applicant should be medically separated, her uncharacterized discharge from the Regular Army should be voided. 

5.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to granting her a medical discharge prior to evaluation by an MEB/PEB.  



      _______ _   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)                                         AR20130013283



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ABCMR Record of Proceedings (cont)                                         AR20130013283



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