IN THE CASE OF:	  

		BOARD DATE:	  3 April 2014

		DOCKET NUMBER:  AR20130014287 


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, in effect, correction of her records to show she was retired by reason of disability vice honorably discharged.  

2.  The applicant states:

	a.  She recently learned that those Soldiers separated since 2001 who were given a Department of Veterans Affairs (VA) rating greater than 30 percent (%) were eligible to have their records reviewed for a possible change to a medical retirement.  While she was discharged in 1999 and not eligible for the special review, she understands she is still eligible for a review of her records as it has been less than 15 years since her discharge.

	b.  In 1999, she was honorably discharged in the rank/grade of staff sergeant (SSG)/E-6 with 15 years and 10 months of active duty service.  Prior to her discharge she had medical challenges from 1997 to 1999 that negatively impacted her physical fitness.  During 15 years of service, she only had excellent evaluation ratings until her final rating in 1999.  She was a distinguished honor graduate and received the Joint Service Commendation Medal and Army Commendation Medal.

	c.  She was assigned to the 303rd Military Intelligence (MI) Battalion, Fort Hood, TX, and in 1997 she was attached to the 4th Infantry Division for deployment to Kuwait.  When she returned to Fort Hood, she began to bleed vaginally, heavily, and nonstop.  She saw several endocrinologists and was told it was her new "normal" and she had to deal with it.  Physical training (PT) uniforms were an ugly challenge for her as her bleeding was very heavy.  She kept the situation extremely private and was disappointed with the medical system.  

	d.  After failing an Army Physical Fitness Test (APFT) and believing she could not continue in the Army because of her unresolved medical issue, she discussed it with her commander and gratefully accepted an honorable discharge.  When she joined the Army at age 17 she had no medical issues.  At age 34, she did not think about a medical retirement for what seemed like "female problems."  The VA has granted her a 50% disability rating for service-connected diabetes and joint issues.  Like the Army doctors at Fort Hood, the VA could not diagnose her bleeding problem and did not grant disability for that.

3.  The applicant provides:

* her DD Form 214 (Certificate of Release or Discharge from Active Duty)
* eight pages of medical documents, dated between 14 August 2000 and 6 June 2013
* a letter issued by the VA, dated 7 January 2013
* three DA Forms 2166-6 (Enlisted Evaluation Report)
* eight DA Forms 2166-7 (Noncommissioned Officer Evaluation Report (NCOER))
* a certificate of achievement

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 enlisted in the Regular Army on 13 July 1983.  She served through several reenlistments and/or extensions and was promoted to the rank of SSG on 1 July 1991.  She was assigned to the 303rd MI Battalion, Fort Hood, TX.

3.  Orders Number 346-31, dated 12 December 1997, issued by the U.S. Total Army Personnel Command (PERSCOM), Alexandria, VA, promoted her to the rank/grade of sergeant first class (SFC)/E-7 effective 1 January 1998.  These orders stated SSGs promoted to SFC who had not completed the Advanced NCO Course (ANCOC) were promoted conditionally.  Orders would be revoked and names removed from the centralized promotion list if they failed to meet the ANCOC requirement.

4.  On 18 September 1998, a DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) was placed against the applicant for APFT failure.

5.  On 18 September 1998, she was counseled by her first sergeant (1SG) on a DA Form 4856 (General Counseling Form) for failing the APFT and scoring only 32 points in the two-mile run.  The 1SG stated a flag was placed against her and she was enrolled in remedial PT.  She would be given diagnostic APFTs in October and November 1998 and administered a record APFT on 17 December 1998.  If she failed a second record APFT she would be subject to separation under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance.

6.  On 18 September 1998, in a response to the counseling, the applicant stated she had no leadership future in the Army.  Since the [APFT] failure caused her not to attend ANCOC and the removal of her conditional promotion, she saw zero future for her in the Army.  It was not necessary to rehabilitate her for there could be no rehabilitation and she would not get her [SFC] stripe back.  She requested chapter 13 proceedings be initiated against her at that time and, although she had 15 years of service, she would waive any administrative board hearing.

7.  On 6 November 1998, she was notified by PERSCOM that she had previously been considered and selected for promotion to SFC.  However, based on the cancellation of her ANCOC due to APFT failure her name had been administratively removed from the promotion list.

8.  She failed diagnostic APFTs on 30 October and 23 November 1998 and failed a record APFT on 18 December 1998.

9.  On or about 4 January 1999, she was notified by her immediate commander that separation action was being initiated against her under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance.  The commander stated he was initiating the action because she had failed two consecutive APFTs and, due to a reduction in rank and inability to overcome the action, her potential for leadership and advancement was unlikely.  He also stated he was recommending she receive an honorable discharge. 
10.  On 4 January 1999, she acknowledged receipt of the notification of the proposed separation action.  On 2 February 1999, she consulted with legal counsel and was advised of the basis for the contemplated separation action, the possible effects of a discharge for unsatisfactory performance, and of the procedures and rights that were available to her.  She submitted a request for a voluntary wavier to have her case heard by an administrative separation board on the condition she be given an honorable discharge.  

11.  On 12 February 1999, the separation authority approved the applicant's discharge action and directed the issuance of an Honorable Discharge Certificate.  On 13 May 1999, she was discharged accordingly.

12.  The DD Form 214 she was issued confirms she was honorably discharged under the provisions of Army Regulation 635-200, chapter 13 by reason of unsatisfactory performance.

13.  Her available records are void of any evidence that shows she was ever diagnosed with any injury/medical condition while serving on active duty that resulted in injuries and/or a medical condition that prevented her from performing her duties and would require referral to a medical evaluation board (MEB).

14.  The applicant provides a medical document, dated 14 August 2000, wherein it shows she was treated on that date for a complaint of bleeding heavily every day for 2 years.  She also provides a medical document, dated 6 September 2000, wherein it shows she was treated on that date for a complaint of bleeding heavily every day for 3 years.

15.  She provides a letter from the VA, dated 7 January 2013, wherein it states VA records verify she was rated 50% disabled for a service-connected disability.  The letter does not show what the rated disability or disabilities were.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

17.  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 an MEB is convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  

18.  Paragraph 2-1 of Army Regulation 635-40 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  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 that service member can be medically separated or retired.

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

20.  Title 38, USC, 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.  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.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant did not satisfactorily perform her military duties as a Soldier and NCO based on her failure of two consecutive record APFTs and removal from the ANCOC and SFC lists due to being flagged for PT failure.  Accordingly, her immediate commander initiated separation action against her.

2.  The applicant's separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized her rights.  The type of discharge directed and the reason for separation were therefore appropriate considering all the facts of the case. 

3.  The evidence of record does not show and the applicant has not provided any evidence that shows she was diagnosed with, or treated for a bleeding problem, or any physical injury/condition while serving on active duty that prevented her from performing her duties and would require referral to an MEB.  

4.  A disability decision rendered by another agency does not establish an error on the part of the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining a Soldier's fitness to perform military duties.  The VA may award ratings because of a service-connected disability that was incurred in or aggravated by active military service that affects the individual's civilian employability.  In addition, the applicant stated the VA did not grant her disability for, or diagnose her with, a bleeding problem that she claims occurred while on active duty.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20130014287



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ABCMR Record of Proceedings (cont)                                         AR20130014287



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