IN THE CASE OF:  

		BOARD DATE: 6 March 2015

		DOCKET NUMBER:  AR20140012413


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 military records to show he was discharged due to medical reasons.

2.  The applicant states he disclosed the injuries he received while on active duty.  He believes these injuries show his narrative reason for separation should be for medical reasons.  The Department of Veterans Affairs (VA) determined that he had been injured and awarded him service connected compensation for those injuries.

3.  The applicant provides copies of:

* VA Rating Decision, dated 1 May 2014
* Service Medical Records (28 pages)
* Service Personnel Records (35 pages)

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.  On 1 May 2012, the applicant enlisted in the Regular Army (RA).  He completed his initial training as an armor crewman and was assigned for duty at Fort Bliss, Texas.

3.  A DA Form 5500 (Body Fat Content Worksheet - Male), dated 1 February 2013, shows the applicant exceeded the Screening Table Weight of 185 pounds.  His actual weight was 194 pounds.  His body fat content was 21 percent which was one percent lower than the maximum of 22 percent.

4.  A DA Form 705 (Army Physical Fitness Test (APFT) Scorecard), dated 
1 February 2013, shows the applicant failed a record test.

5.  A DA Form 4856 (Developmental Counseling Form), dated 1 February 2013, shows the applicant was counseled concerning his APFT failure.  He was informed that he had not met the minimum Army standards.  Because this was a record APFT he would be flagged and considered for a bar to reenlistment.  He was also informed that continued failure to meet the APFT standard could result in his separation from the service and/or punitive action.  The applicant indicated his agreement with this counseling.  The counselor indicated that a retest would be on 3 April 2013 and that administrative separation action had been started.

6.  A DA Form 705, dated 3 April 2013, shows the applicant failed a second record APFT.  This form also shows the applicant's weight had increased to
202 pounds and his body fat content had dropped to 20 percent.

7.  A DA Form 4856, dated 3 April 2013, shows the applicant was counseled concerning his APFT failure.  He was informed that he had not met the minimum Army standards.  Because this was a record APFT he would be flagged and considered for a bar to reenlistment.  He was also informed that continued failure to meet the APFT standard could result in his separation from the service and/or punitive action.  He was told that he had 90 days in which to pass the APFT.  The applicant's response to this counseling is not available for review.

8.  A DA Form 705, dated 3 June 2013, shows the applicant failed a third record APFT.  This form also shows the applicant's weight was 200 pounds and his body fat content was 20 percent.



9.  A DA Form 4856, dated 3 June 2013, shows the applicant was counseled concerning his third APFT failure and given essentially the same information as provided in his two previous counseling sessions.  The applicant's response to this counseling is not available for review.

10.  A DA Form 3349 (Physical Profile), issued on 11 June 2013, indicates the applicant had been diagnosed with having a mild to moderate lower extremity pain/injury.  He was given a low-impact temporary profile number 2 for lower extremities and restricted from performing APFT.  He was authorized to run at his own pace not to exceed two miles and no more than 3 times per week.  He was also authorized upper body exercises.  This profile expired on 11 July 2013.

11.  A DA Form 3349, issued on 8 July 2013, indicates the applicant's previous temporary profile had been extended until 8 August 2013 with no change in restrictions.

12.  On 5 August 2013, the commander notified the applicant of his intention to initiate action to separate him from the military under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separation), chapter 13, for unsatisfactory performance.  The reason for this action was the three consecutive APFT failures discussed above.

13.  On 5 August 2013, the applicant acknowledged the commander's intent.  He indicated that he would not be submitting a statement in his own behalf.  He requested consulting counsel.

14.  On 7 August 2013, the applicant was advised by counsel of his rights.

15.  On 7 August 2013, the commander recommended the applicant be separated due to unsatisfactory performance.  The commander recommended that he receive an honorable characterization of service.

16.  On 7 August 2013, the appropriate authority approved the recommendation and directed the applicant receive an honorable characterization of service.

17.  The applicant's DD Form 214 ending on 16 August 2013 indicates:

	a.  he was discharged with an honorable characterization of service under the provisions of paragraph 13-2e, Army Regulation 635-200 for physical standards; and

	b.  he was assigned a separation program designator (SPD) code of JFT and a reentry code of 3.
18.  The VA evaluated the applicant's claim received on 13 September 2013.

   a.  He was granted service-connected disability for major depressive disorder with anxiety disorder rated at 40 percent and for a right knee sprain rated at 
10 percent.  He was granted a combined disability rating of 40 percent.

	b.  He was not granted service-connection for a lower back pain condition because it was not related to his military service.

19.  Army Regulation 40-501(Physical Evaluation for Retention, Retirement, or Separation) provides the standards for medical fitness for retention and separation, including retirement.  Soldiers with medical conditions listed in this regulation should be referred for disability processing.

20.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code of JFT was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of AR 635-200, paragraph 13-2E for physical standards.

21.  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.

22.  Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which 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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered physically unfit 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.




23.  Title 10, U.S. Code:

	a.  chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of a disability incurred while entitled to basic pay;

	b.  section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling; and

	c.  section 1203, provides for the physical disability separation of a member who has an impairment rated of less than 30-percent disabling.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he was discharged due to medical reasons because he believes his service connected disabilities caused his military performance to be unsatisfactory.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  The available evidence clearly and convincingly shows the applicant failed three consecutive APFT events.  There is no documentary evidence showing he had any physical condition prior to any APFT that would have precluded his successful completion of each event.  His physical profiles were issued subsequent to his third APFT failure.

5.  Because the applicant's medical condition was not medically unfitting for retention at the time in accordance with Army Regulation 40-501, there was no basis for medical retirement or separation.

6.  An award of service connection by the VA does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA has neither the authority nor the responsibility for determining medical unfitness for military duty.  The VA awards ratings because a medical condition is related to service "service-connected" and affects the individual's civilian employability.  Furthermore, 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 must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

7.  In view of the above, the applicant's request should be denied.

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)                                         AR20130013382



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ABCMR Record of Proceedings (cont)                                         AR20140012413



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