IN THE CASE OF:	  

		BOARD DATE:	    4 August 2015

		DOCKET NUMBER:  AR20140019568 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she was medically discharged because of a medical disability under honorable conditions.  She also requests a personal appearance hearing.  

2.  The applicant states, in effect:

   a.  Near the end of basic combat training she began having severe pain in her feet.  Her drill instructor told her to go to sick call and she received a comprehensive medical examination at the hospital.  The examination revealed she had severely flat feet, hammer toes, and a right bunion.  The doctors at the hospital wanted to perform major surgery on her feet, which included breaking and resetting the bones in her toes, and shaving bones. Some of the doctors told her that she may never walk again and other doctors said she should never have been permitted to enlist in the Army.  
   
   b.  She did not want to go surgery and tried corrective shoes.  Unfortunately, the shoes did not help and she had to go to sick call two or three times a week.  Eventually, she was unable to run, march, or wear her jump boots; even walking was almost impossible.  Finally, the doctors referred her to a medical board, and she was informed she was going to be sent home because she was not fit for duty.  
   
   c.  Her company commander said he was not going to recommend her for a medical discharge because she was young and would have no problem finding a job.  He also stated that he would not give her a medical discharge because he did not want to make the Army pay for her medical condition for the rest of her life.  She believes she was done a deliberate injustice by her commander simply because of her young age, her gender, and her ethnicity.  
   
   d.  She clearly had a medical condition that warranted processing through a medical evaluation board/physical evaluation board (MEB/PEB) and a medical discharge, especially considering that her condition was so severe that it has caused her permanent damage.  

3.  The applicant provides a copy of her DD Form 214 and:

* three self-authored statements
* her Department of Veterans Affairs (VA) rating decision, dated 17 April 2014
* a letter from the VA, dated 21 April 2014

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.  Prior to her enlistment, the applicant underwent a medical entrance exam on 26 July 1985.  This examination indicated she was medically fit for military service.  She subsequently enlisted in the Regular Army and entered active duty on 29 November 1985.

3.  Her record contains a DA Form 4707 (Entrance Physical Standards Board), dated 13 March 1986, which shows the board found her medically unfit for enlistment for her medical conditions, which in the opinion of medical personnel were conditions that existed prior to service (EPTS).  Her medical conditions were listed as: hammer toes; bilateral hallux valgus [bunion]; moderate talar bulging; and pes planus [flat feet], moderate bilateral, symptomatic.  She signed this form on 13 March 1986 and checked and initialed a block stating, "I concur with these proceedings and request to be discharged from the U.S. Army without delay." 

4.  She was discharged from the Army on 21 March 1986.  Her DD Form 214 shows she completed 3 months and 23 days of net active service.  Additionally, this form shows in:

* item 23 (Type of Separation) – Discharge
* item 24 (Character of Service) – Entry Level Status [uncharacterized]
* item 25 (Separation Authority) – Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-11
* item 28 (Narrative Reason for Separation) – Did Not Meet Procurement Medical Fitness Standards – No Disability

5.  She provided a copy of her VA rating decision, dated 17 April 2014 and a letter for the VA, dated 21 April 2014.  These documents show the VA awarded her a service-connected disability rating of 30 percent (%) for bilateral pes planus and a service-connected disability rating of 0% for hallux valgus of the right foot.  These ratings were effective 4 March 2013.

6.  Army Regulation 635-200 provides for the separation of enlisted personnel.  

	a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

	c.  Paragraph 3-9 provides that an entry-level separation is an uncharacterized separation. A separation will be described as an entry-level separation if processing is initiated while a member is in entry-level status, except when characterization under other than honorable condition is authorized under the reason for separation and is warranted by the circumstances of the case or when The Secretary of the Army, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.  

	d.  Paragraph 5-11 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, 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.

7.  Entry-level status is defined as the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break in service of more than 92 days of active military service.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member fails to meet medical retention criteria, refer the member to an MEB.  Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

9.  Title 38, U.S. Code, permits the VA to award compensation for a medical condition which was 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. The VA does not make a determination of whether the medical condition is disqualifying for retention in the Army.

10.  Title 38, U.S. Code, section 5110, states the effective date of an award of disability compensation to a veteran will be the day following the date of the veterans' discharge or release if an application therefor is received within 1 year from such date of discharge or release.  The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if an application is received within 1 year from such date.

11.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-2 outlines the functions of the ABCMR.  It states the ABCMR will decide cases on the evidence of record.  It is not an investigative body.  Paragraph 2-9 contains guidance on the burden of proof.  It states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

12.  Army Regulation 15-185, paragraph 2-11, states that applicants do not have a right to a formal hearing before the ABCMR.  The Director of the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant requested to personally appear before the Board, there was sufficient evidence available for fair and impartial consideration of her case.

2.  The applicant's requests, in effect, that her type of and reason for separation be changed to show she was medically and honorably discharged because of a medical disability were carefully considered and determined to lack merit.

3.  The EPSBD proceedings show she was evaluated by competent medical authorities and was diagnosed with hammer toes; bilateral hallux valgus [bunion]; moderate talar bulging; and pes planus [flat feet], moderate bilateral, symptomatic and that these were determined to be EPTS conditions.  As such, she was, through no fault of her own, unable to meet established medical standards for entry into military service.  

4.  An uncharacterized entry-level discharge is not meant to be a negative reflection of a Soldier’s military service.  It merely means that the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise.  

5.  Her discharge under the provisions of Army Regulation 635-200, paragraph 
5-11 based on failure to meet procurement medical fitness standards, was administratively correct and conformed with applicable regulations.

6.  The evidence of record shows she was separated in accordance with the governing regulation.  Her narrative reason for separation was based on her failure to meet procurement medical fitness standards.  She has not established a basis for changing her reason for discharge.  In view of the foregoing, there is no basis for granting relief in this case.

7.  The VA operates under its own policies and may compensate a veteran for any medical condition which they determined to be service related.  Whether that condition was medically disqualifying for retention is not relevant in the VA's determination.  As such, the fact that the VA gave the applicant a disability rating for her medical condition does not establish an error in this case.

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)                                         AR20140019568





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ABCMR Record of Proceedings (cont)                                         AR20140019568



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