IN THE CASE OF:	  

		BOARD DATE:	   6 November 2014 

		DOCKET NUMBER:  AR20140002356 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) by changing the narrative reason for his separation from "condition not a disability" to "service-connected disability."

2.  The applicant states he is presently rated by the Department of Veterans Affairs (VA) at 20 percent for service-connected disabilities.  This should reflect that they are chronic in nature and, therefore, the narrative reason for his separation does not accurately describe the reason for his separation.  This is preventing him from receiving the total amount for his educational benefits and is having a severe economic impact on his family.

3.  The applicant provides a DD Form 214 and a letter from the 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 enlisted in the Regular Army on 27 April 2009.  

3.  A DA Form 4187 (Personnel Action), dated 4 June 2009, shows his commander recommended his reassignment to the Warrior Training and Rehabilitation Program (WTRP), due to bilateral calcaneal/right tibial issues.  

4.  On 4 February 2010, the officer in charge of the Fort Leonard Wood, MO, Consolidated Troop Medical Clinic (CTMC), Physical Therapy, provided a statement stating the following:

	a.  The applicant reports pain in his heels since May 2009.  He previously demonstrated an L calcaneal stress fracture on bone scan only.  He has been in WTRP for 6 months and his B calcaneal pain was abolished in August 2009 and he was started on a walk/run program.  

	b.  During the course of the walk-to-run program, he developed shin splint pain B and was put on a non-impact program in the WTRP.  His B tibia pain resolved and he was again started on a walk-to-run program with a return of the tibial pain shortly thereafter.  He has been in physical therapy for months and he has been appropriately managed and he even had custom-made orthotics fabricated. 

	c.  In November 2009, a separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17 (Other designated physical or mental conditions) was discussed with the Soldier and he stated that he wanted a Medical Evaluation Board (MEB).  It was explained to him that an MEB was not appropriate because the pain in his heels had been non-existent for over 3 months and that is when he mentioned for the first time in 3 months that "his heel started hurting yesterday." 

	d.  He was sent to podiatry and the podiatrist recommended the separation under Army Regulation 635-200, paragraph 5-17 as well.  The Soldier was not satisfied with this outcome so he requested another opinion from orthopedics.  He saw Dr. B two times, and Dr. B requested a bone scan to ensure resolution of his calcaneal SFx's. 

	e.  The bone scan showed no activity in his calcanei and almost a complete resolution of the tibial SRx's previously present in October 2009.  Dr. B explained to him that he is demonstrating healing and his condition would not lead to permanent disability and that he would receive a "chapter 5-17" discharge.
	f.  After Dr. B left, the Soldier stated "since I am getting a "chapter 5-17," I would like to try WTRP again."  The WTRP was not an option since the off/on pain cycle had been ongoing for 9 months now.

	g.  The Soldier was recommended for the "Chapter 5-17" by physical therapy, podiatry, and orthopedics so an MEB was not required.  The Soldier had participated in WTRP for over 6 months and had been unable to tolerate the walk/run progression to allow him to take the Army Physical Fitness Test in order to reenter basic combat training.  

	h.  The Soldier had demonstrated inconsistent symptoms; one day he claimed he had no pain then the next visit he exaggerated pain behaviors.  The Soldier was unable to tolerate the rigors of initial entry training (IET) at the time and his condition would not lead to permanent disability.

	i.  His separation under the provisions of Army Regulation 635-200, paragraph 5-17, was recommended or any administrative action deemed necessary by his command.  

5.  On 17 February 2010, the applicant's immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of other designated physical or mental condition.  The commander cited as the reasons for the proposed separation action the evaluation rendered by the officer in charge of the Fort Leonard Wood, MO, CTMC, Physical Therapy and the applicant's pain in his heels that prevented him from running, climbing stairs/hills, or at times even walking without increased pain.

6.  On 17 February 2010, the applicant acknowledged receipt of the proposed separation action.  He also acknowledged he was advised of the basis for the contemplated separation action and of the rights available to him.  He waived consulting with legal counsel and he elected not to submit a statement in his own behalf.

7.  On 12 September 2013, consistent with the chain of command's recommendations, the separation authority approved the separation action.  

8.  His DD Form 214 shows he was discharged on 9 March 2010, under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of "condition, not a disability."  His character of service is shown as honorable.

9.  There is no evidence in his military records that shows he sustained an injury while on active duty or that he was suffering from a disabling medical condition.
10.  He provides a letter from the VA that shows he is receiving service connected disability compensation with a disability rating of 20 percent.  

11.  Army Regulation 612-201 (Initial Entry/Prior Service Trainee Support), paragraph 8-2, states the WTRP provides a modified basic combat/one station unit training (BCT/OSUT) environment that continues to train and/or educate Soldiers towards IET graduation while allowing for effective healing and recovery. It prepares the "whole Soldier" physically and mentally for return to regular training upon successful rehabilitation.  Soldiers should return to BCT/OSUT more physically fit and better trained/educated than when they entered (this is not intended to supplant and/or replace BCT unit training or graduation).  The WTRP maintains the BCT/OSUT environment as closely as possible.  This helps maintain the Soldiers' expectancy that they will return to BCT upon WTRP completion.  The WTRP strengthens and rehabilitates IET Soldiers who have been injured since entry on active duty or who may have a treatable condition that precludes regular training.

12.  Army Regulation 635-200, paragraph 5-17, states that commanders who are special court-martial convening authorities may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty.  A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition.  Members may be separated for physical or mental conditions not amounting to disability.

13.  Army Regulation 635-40 sets forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 3-1 (Standards of unfitness because of physical disability) of this regulation, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.

14.  Title 38, U.S. Code, sections 1110 and 1131, permits 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 applicant's contention that his DD Form 214 should be corrected to show he was separated due to a physical disability has been carefully considered.  

2.  The evidence of record shows that while he was attending BCT, he complained of pain in his heels and he was reassigned to the WTRP to allow him the necessary time to heal in order to continue BCT.  Evidence also shows that medical authorities determined his condition was temporary in nature and that it would not lead to permanent disability.  Therefore, there was no reason to refer him to an MEB.  

3.  After a lengthy stay at the WTRP, he showed a lack of progress pertaining to his medical condition and as a result, his chain of command recommended his separation for a medical condition which did not amount to a disability.  

4.  Army Regulation 635-200, paragraph 5-17, specifically provides that Soldiers may be separated under this provision on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty.  Therefore, his separation processing was effected in accordance with the applicable laws and regulations.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

5.  His narrative reason for separation was assigned based on the fact that he was separated under the provisions of Army Regulation 635-200, paragraph      5-17, due to a medical condition - not a disability.  Absent this condition, there was no fundamental reason to process the applicant for discharge.  Therefore, the only valid narrative reason for separation permitted under this paragraph is "Condition - Not a Disability."

6.  The fact that the VA, in its discretion, awarded him a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

7.  The applicant has failed to provide evidence showing his separation processing and the assigned narrative reason for separation were in error or unjust.  Therefore, there is no basis to grant 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)                                         AR20140002356



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ABCMR Record of Proceedings (cont)                                         AR20140002356



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