IN THE CASE OF:	  

		BOARD DATE:	    5 August 2014

		DOCKET NUMBER:  AR20130020656 


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 reconsideration of her request that her uncharacterized discharge be changed to show that she was honorably discharged by reason of permanent disability.

2.  The applicant states that she was improperly discharged after being recommended for a medical evaluation board (MEB). 

   a.  She states that she enlisted in the U.S. Army Reserve (USAR) to train as a firefighter.  She was in good health and did not require any medical waivers to enlist.  She passed the Army Physical Fitness Test and was promoted on 
23 March 2011.

   b.  On 28 March 2011, she began basic combat training (BCT).  On 8 April 2011, she sought medical treatment for hip and knee pain that had been present for three days.  She was diagnosed with stress reactive changes of the right femoral neck and medial tibial plateau.

   c.  On 2 May 2011, she was recommended for separation under the provisions of (UP) Army Regulation (AR) 635-200 (Personnel Separation - Enlisted Personnel), paragraph 5-17 (Condition, Not A Disability), due to hip strain and bilateral knee pain.  It was not expected that she would suffer from any long-term permanent disabilities.

   d.  On 1 June 2011, she was notified by her commander that she was initiating discharge action UP AR 635-200, paragraph 5-17.  She states she did not consult with counsel or submit a written statement and her status as a trainee did not afford her the opportunity to research the matter and her situation.

   e.  She summarizes the medical treatment she received, during the period 
4 June 2011 to 20 July 2012, that is documented in the medical records she provides in support of her application.

   f.  She also offers several references from AR 635-200 relating to administrative separation processing, AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) relating to separation processing for unfitness, and AR 40-501 (Medical Fitness Standards for Retention and Separation, including Retirement).
   
3.  The applicant provides a list of 19 documents (including 9 documents that were submitted with her initial application) and which primarily consist of her medical treatment records and administrative separation action.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120009286, on 15 November 2012.

2.  A DD From 2808 (Report of Medical Examination), dated 17 February 2011, shows the applicant was found medically acceptable for military service.

3.  The applicant enlisted in the USAR on 17 February 2011 for a period of 
8 years with training in military occupational specialty 12M (Firefighter).

4.  She was ordered to active duty for training (ADT) on 28 March 2011 and transferred to Fort Leonard Wood, Missouri to undergo one-station unit training.

5.  On 2 May 2011, Marycris M. G--------, Doctor of Physical Therapy, Consolidated Troop Medical Clinic (CTMC), General Leonard Wood Army Community Hospital (GLWACH), Fort Leonard Wood, MO, informed the commander that the applicant was not able to run, jump, ruck march or lift or carry heavy loads consistently or for a prolonged duration without pain.  The doctor projected that the applicant would fully recover from the injuries and it was not expected that she would suffer from any long-term or permanent disability.  She added that it would take a few months before the applicant would be ready to return to duty without any limitation and without pain, an unreasonable timeframe for a Soldier in the BCT environment.  She cleared the applicant for separation UP AR 635-200, paragraph 5-17.

6.  On 13 May 2011, the applicant indicated with her signature that she understood that she was not required to undergo a medical examination for separation from active; however, she could request a physical examination.

   a.  She also indicated that she understood her medical records would be reviewed by a physician at the appropriate medical treatment facility, and if the review indicated that an examination should be accomplished, she would be scheduled for an examination based on the results of the review.

   b.  She indicated that she did not desire a separation medical examination.

   c.  Accordingly, her medical records were reviewed UP AR 40-501 and the determination was made that a medical examination was not required for separation.

7.  On 1 June 2011, the applicant's commander notified the applicant of her intent to initiate separation action to discharge her UP AR 635-200, paragraph 5-17.  The reason for her proposed action was that the applicant was diagnosed with a hip strain and knee stress reactions.  The commander advised the applicant of her rights, the separation procedures involved, and that she was recommending the applicant receive an entry-level separation (uncharacterized).

8.  The applicant acknowledged she had been provided the opportunity to consult with counsel concerning the basis for the contemplated separation action.

	a.  She waived consulting counsel and representation by military and/or civilian counsel.

   b.  She elected not to submit statements in her own behalf.

	c.  The applicant placed her signature on the document.

9.  The immediate and intermediate commanders recommended approval of the applicant's separation action with an entry-level separation.

10.  On 20 June 2011, the separation authority approved the recommended separation action and directed the applicant receive an entry-level separation.  He noted that the applicant was ineligible for transfer to the USAR (Individual Ready Reserve).

11.  The applicant's DD Form 214 shows she was discharged on 7 July 2011
UP AR 635-200, paragraph 5-17, condition, not a disability.  She had completed 3 months and 10 days of net active service this period.  It also shows in:

* item 24 (Character of Service):  "Uncharacterized"
* item 26 (Separation Code):  "JFV"  (AR 635-200, paragraph 5-17, condition, not a disability)

12.  In support of her application the applicant provides 19 documents that include, in pertinent part:

   a.  Standard Form (SF) 600 (Chronological Record of Medical Care), dated 16 June 2011, written by Todd C. D---, Physician Assistant (PA), CTMC, GLWACH.  It shows "joint pain, localized in the hip:  right obturator extermus muscle tear high grade with tendon retraction 'bailed up' appearance on limited MRI.  Symptoms of right knee and right inguinal hip continue 6 of 10 with 8 of 10 [ratings for] pain at night.  Patient is scheduled to return home next week with the Chapter 5-17, I have recommended an MEB, which she understands that further medical care needed for this condition will be out of pocket, and the burden of proof will be on her through the VA [Department of Veterans Affairs], and reserve unit for care.  I consulted [with] Doctor B---- (ORTHO), he wishes to see her 20 June.  I have emailed Major P------ to make arrangements while I will be TDY [temporary duty] tomorrow."

   b.  SF 600, dated 1 July 2011, written by Ronald G. S-----, PA, ORTHO, CTMC, GLWACH.  It shows, "Patient was seen by Dr. F---- yesterday and a MEB was not indicated by his note.  The patient states that her unit is trying to chapter her out on a [paragraph] 5-17 and she needs documentation that states that she is not going through a MEB."

   c.  DA Form 3349 (Physical Profile), dated 1 July 2011, that shows Ronald G. S-----, PA, issued the applicant a temporary profile with an expiration date of
29 September 2011.

    	(1)  Item 8 (Functional Limitations and Capabilities and Other Comments) shows, in pertinent part:

* service member will be in rehabilitation
* administrative separation is not recommended
* potential MEB

    	(2)  Item 12 (Name and Grade of Approving Authority), item 13 (Signature), and item 14 (Date) are blank (no entries showing an authorized medical doctor approved the physical profile).

   d.  VA Vocational Rehabilitation and Employment (VR&R) Services notice, dated 8 October 2011, that shows the applicant was advised that she may have become eligible for benefits based on being in the process of separating from the military and having received an IDES [Integrated Disability Evaluation System] disability rating of 10% or more.

   e.  VA letter, dated 20 July 2012, that shows the VA granted the applicant service connection, effective 1 August 2011, for the following conditions:

* Acetabular impingement right hip with limited extension (claimed as torn right hip muscle, acetabular labral tear, and femoral acetabular impingement) - 10%
* Acetabular impingement right hip with limited adduction (claimed as torn right hip muscle, acetabular labral tear, and femoral acetabular impingement) - 10%
* Acetabular impingement right hip with limited flexion (claimed as torn right hip muscle, acetabular labral tear, and femoral acetabular impingement) - 0%
* Patellofemoral syndrome right knee (claimed as stress fracture knee) - 0%

13.  On 25 January 2012, the Army Discharge Review Board determined that the applicant's discharge was both proper and equitable and voted unanimously to deny her request to change the character and reason for her discharge.

14.  A review of the applicant's military service records, as well as the documents submitted with her application, failed to show evidence that the applicant was diagnosed with a permanent unfitting condition.

15.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army. 

	a.  Chapter 3 (Character of Service/Description of Service), paragraph 3-7a, provides, in part, the honorable characterization may be awarded to a Soldier upon completion of his/her period of enlistment or period for which called or ordered to active duty or ADT, or where required under specific reason for separation, unless an entry-level status separation (uncharacterized) is warranted.

	b.  Section II (Terms) of the glossary states that entry-level status for Reserve Soldiers begins upon enlistment in the USAR/ARNG and, for Soldiers ordered to ADT for one continuous period, it terminates 180 days after beginning training.

   c.  Chapter 5 (Separation for Convenience of the Government), 
paragraph 5-17, provides that commanders may approve separation of Soldiers who have a physical or mental condition that potentially interferes with assignment to or performance of duty; however, the physical or mental condition does not amount to a disability or qualify for disability processing under the provisions of AR 635-40.

16.  AR 40-501 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, the Physical Evaluation Board rates all disabilities using the VA schedule of rating disabilities.

17.  AR 635-40 sets forth policies, responsibilities, and procedures 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.  

18.  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, 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.

   a.  The VA is not required by law to determine medical unfitness for further military service.  Thus, an award of a VA rating does not establish error or injustice in the Army rating.  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.

   b.  Consequently, due to the two concepts involved, an individual's medical condition(s), although not considered physically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different disability decisions based on the same impairments.

   c.  Furthermore, 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.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA (and some other government agencies) may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant's processing through the Physical Disability Evaluation System.

DISCUSSION AND CONCLUSIONS:

1.  Records show the applicant was ordered to ADT on 28 March 2011 and she was discharged on 7 July 2011.  She completed 3 months and 10 days of active service and was in an entry-level status when she was discharged.

2.  The regulatory guidance states an entry-level status Soldier's separation will be "uncharacterized."

3.  The applicant's discharge was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant's rights.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

4.  There is no evidence of record that shows the applicant was diagnosed with any medical conditions that were medically unfitting for retention in accordance with AR 40-501.  

   a.  At the time of her separation processing, she elected not to undergo a medical examination.  Accordingly, her medical records were reviewed and the determination was made that there was no basis (i.e., an unfitting physical or mental condition) requiring medical examination prior to separation.  

   b.  On 1 July 2011, she was issued a temporary (emphasis added) profile that contained the note "potential (emphasis added) MEB."  This note indicates the PA did not have the requisite medical credentials and authority to make the determination to recommend her for referral to an MEB.  In addition, the
DA Form 3349 was not reviewed or approved by an authorized medical official.
   c.  Thus, the evidence of record fails to show the applicant was referred to the physical disability evaluation system (i.e., MED or PEB) based on an unfitting condition.
 
5.  The evidence of record shows the VA diagnosed the applicant with service connected conditions.

6.  The VA (and some other Government agencies), provides compensation for disabilities which it determines were incurred in or aggravated by active military service, including those that are detected after discharge, and which impair the individual's industrial or social functioning.

7.  Therefore, in view of all of the foregoing, the applicant is not entitled to correction of her records to show she was honorably discharged based on a permanent disability.

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 to amend the decision of the ABCMR set forth in Docket Number AR20120009286, dated 15 November 2012.




      _______ _   __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)                                         AR20130020656



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ABCMR Record of Proceedings (cont)                                         AR20130020656



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