IN THE CASE OF:	

		BOARD DATE:	  22 July 2014

		DOCKET NUMBER:  AR20130018435 


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, a medical retirement.

2.  The applicant states:

	a.  she was fit for duty when she entered military service on 8 August 2007.  

	b.  she received an injury while on active duty in a training exercise.  

	c.  she did not have a pre-existing injury or condition which she has proven to the Department of Veterans Affairs (VA) who rated her 70% service-connected.  She has provided documentation to show she had no pre-existing injury or condition.  Per her doctors, she was not repaired within a reasonable time period and now the damage is permanent.  She is still in pain and disabled to this day.

	d.  prior to shipping, she received multiple examinations conducted by the San Jose Military Entrance Processing Station and her private doctor.  She had no injuries or conditions.  She has included her medical records showing she had no problems and that her injury was sustained in service.

	e.  she would like the reason for separation to be service-connected disability, injured in service because that is what happened.  She was not injured prior to service.

	f.  she was injured while in the service in 2007, held for weeks, and she was not allowed to receive treatment, which made her condition permanent disabling.   
3.  In a letter, dated 27 June 2013, she states:

	a.  as a result of the service-connected injury that happened in 2007, she lost her uterus which has caused many permanent issues.  Since September 2007, her condition has not improved.

	b.  subsequent to the injury she has been diagnosed with diabetes and high blood pressure for which she takes medication to control both.  

	c.  as a result of leaving her uterus prolapsed for 17 weeks, she experienced a total pelvic prolapse.

	d.  on 4 September 2007, she was participating in a mandatory training exercise (an obstacle course).  While on a rope, she felt a tearing sensation in her lower stomach and groin area.  She had to continue the course or she would be incomplete for that task.  When she finished the rope she had to quickly go the rappel tower.  Next she rappelled from a tower.  She felt more of the tearing sensation and slight pain in her pelvic area as she was rappelling down the bottom of the tower.  Not knowing what exactly was wrong she marched with a full ruck because she could not quit.  She had to fall out of formation several times because of the intense pressure in her pelvic cavity. 

	e.  she reported the problems and was examined by various doctors.  Over the next 3 weeks she went back and forth to the hospital.  The doctors would tell her they could not help and return her back to training with a medical profile.  Finally, she was sent to an outside doctor who said her injury was caused by the recent activities and that she needed surgery immediately.  No one wanted to do anything; they said to wait.

	f.  she was told she was not going to get surgery and to go home if she wanted to get repaired because she was not going to be allowed to get surgery so she could stay in the Army.  She was ordered to go home because she was not going to receive medical treatment that would have repaired her and allowed her to stay in the Army.

	g.  she worked hard to get in the Army.  She wanted to stay in the Army and serve her country.

	h.  from the 2007 injury until a few months ago she needed a cane to assist her in walking.  She had to take narcotics for pain, she missed over a year of work due to the residual effects of her injury, and she suffers from depression.  Her quality of life has been drastically affected in a negative way.  Her doctor said all of this could have been avoided if she could have had the injury repaired when it happened instead of delaying.        

4.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Service medical records
* VA medical records 

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.  Four days prior to her 42nd birthday, the applicant enlisted in the U.S. Army Reserve (USAR) on 8 August 2007 for a period of 8 years.  She was ordered to active duty on 8 August 2007 for training.  

3.  She provides sick slips, dated September and October 2007, which show she was diagnosed with possible hernia vaginal canal and fallen bladder, uterus and cervix.  Her medical records indicate she had 1 child.   

4.  Her record is void of the specific facts and circumstances surrounding her discharge action.  However, her DD Form 214 shows she was discharged on 
24 October 2007 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administration Separations), paragraph 5-11, due to failed medical/physical/procurement standards.  She completed 2 months and 9 days of total active service.  Her character of service was uncharacterized.

5.  On 24 October 2007, she was discharged from the USAR.  

6.  She provides a preoperative history and physical record, dated 8 December 2007, from her doctor who states "I have discouraged the patient from a surgical therapy stating that current prolapsed will be a continual problem in a young woman of her age who has gotten prolapse; however, she claims that her prolapse is interfering with her ability to perform her chosen job has requested surgical therapy.  The plan is to perform a vaginal hysterectomy.  Risks, benefits, and alternatives have been discussed at length including the risks of infection; bleeding; injury to other organs including bowel, bladder, and ureters; and the risk that her pelvic pain will not be relieved by the surgery and that further prolapsed requiring further surgeries from here will be necessary.  She understands these risks and has chosen to proceed." 

7.  She provides an operation report that shows she underwent a hysterectomy on 10 December 2007. 

8.  She provides a letter, dated 28 June 2013, from the VA which states she is receiving service-connected disability compensation (70%).

9.  Army Regulation 635-200 provides 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 or active duty 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 (Standards of Medical Fitness), chapter 3.  The characterization of service for Soldiers separated under this provision of regulation will normally be honorable, but will be uncharacterized if the Soldier is in an entry-level status.  For U.S. Army Soldier (USAR), entry-level status begins upon enlistment in the USAR.  For Soldiers ordered to inactive duty training (IADT) for one continuous period, it terminates 180 days after beginning training.  For Soldiers ordered to IADT for the split or alternate training option, it terminates 90 days after beginning phase II (advanced individual training).  Soldiers completing phase I (basic training or basic combat training) remain in entry-level status until 90 days after beginning phase II.

10.  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.  Under the laws governing the Army Physical Disability Evaluation System, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

11.  Army Regulation 635-40 states that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service.  

12.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his/her office, rank, grade or rating because of disability incurred while entitled to basic pay.

13.  Chapter 2 (Physical Standards for Enlistment, Appointment, and Induction) of Army Regulation 40-501 states enlisted Soldiers identified within the first six months of active duty with a condition that existed prior to service that does not meet the standards of chapter 2 may be separated (or receive a waiver to remain on active duty) following an evaluation by an EPSBD, in accordance with Army Regulation 635-200, chapter 5.

14.  Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition that was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  

15.  The Medline Plus website states uterine prolapse occurs when the womb (uterus) drops down and presses into the vaginal area.  Muscles, ligaments, and other structures hold the uterus in the pelvis.  If these tissues are weak or stretched, the uterus drops into the vaginal canal.  This is called prolapse.  This condition is more common in women who have had one or more vaginal births.  Other things that can cause or lead to uterine prolapse include:  

* Normal aging
* Lack of estrogen after menopause
* Conditions that put pressure on the pelvic muscles, such as chronic cough and obesity
* Pelvic tumor (rare)



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she should have been medically retired.

2.  Her contention the VA rated her at 70% service-connected was noted.  However, the rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  

3.  The applicant's available record is void of the complete facts and circumstances concerning the events that led to her discharge from the Army.  It appears she had a condition that existed prior to service that manifested itself after her enlistment.  Nevertheless, her DD Form 214 confirms that she was discharged under the provisions of Army Regulation 635-200, paragraph 5-11, for failed medical/physical/procurement standards on 24 October 2007.  

4.  In the absence of evidence to the contrary it must be presumed her separation processing was administratively correct and in conformance with applicable regulations.  Therefore, there is an insufficient evidentiary basis for granting the requested relief.

5.  Her contention she was not repaired within a reasonable period of time and now the damage is permanent was noted.  However, contemporaneous medical evidence provided by the applicant shows following her discharge in October 2007, and prior to her hysterectomy in December 2007, her physician tried to discourage her from a surgical therapy.  In addition, they discussed the risks at length including the risks of infection, bleeding, injury to other organs, and the risk that her pelvic pain will not be relieved by the surgery and that further prolapsed requiring further surgeries would be necessary.  Nevertheless, she chose to proceed with the hysterectomy. 

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)                                         AR20130018435





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130018435



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1