IN THE CASE OF:	  

		BOARD DATE:	  15 September 2015

		DOCKET NUMBER:  AR20150000709 


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 her record to show that she was separated for service incurred disability.

2.  The applicant states she fractured her foot in a fall onto the frozen ground.  As a result of that foot fracture she also strained her knee.  She was refused immediate medical attention.  Afterward, when she was seen by medical personnel, the fracture was found and she was discharged.  As a result of that injury she also suffers from severe depression and pain in her left knee.  In February 2012 she was awarded 10 percent service connected disability by the Department of Veterans Affairs (VA).  Her disability rating has been increased to 40 percent, but she is not eligible for GI Bill benefits unless the reason for discharge is changed to service-connected disability.

3.  The applicant provides no additional supporting documentation. 

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 20 May 2010.

3.  In a 7 April 2011 memorandum, the Medical Director, Soldier Care, Fort Jackson, South Carolina informed the applicant’s company commander that she “has developed a left foot stress fracture.  She is actively getting treated…but her symptoms are getting exacerbated by remaining here.  We expect this to fully resolve within 6 months and her condition will not result in permanent disability.  It is our recommendation that she be discharged per Chapter 5/17.”

4.  On 11 April 2011 the applicant's commander initiated action to discharge her from the service under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17.  He noted the applicant was unable to complete basic training because of the stress fracture and the time it would take to heal.  The applicant was informed of her rights and that the commander was recommending she receive an uncharacterized entry level separation.

5.  On 13 April 2010 the applicant consulted with counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to her, and the effect of a waiver of her rights.

6.  The applicant's company commander recommended the applicant be discharged under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-17.  The basis for the recommended action was the applicant’s inability to complete basic training due to her stress fracture and the time it would take to heal.

7.  The separation authority approved the recommendation for discharge of the applicant and directed she be issued an entry level separation with service uncharacterized.

8.  The applicant's DD Form 214 shows she was discharged on 
21 April 2011.  She had completed 11 months, and 2 days of net active service during this period.  

9.  On 12 September 2012 the Army Discharge Review Board, in a unanimous decision, changed the characterization of the applicant’s discharge to honorable.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-17 provides that a Soldier may be separated on the basis of other physical or mental conditions not amounting to disability under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), when the condition potentially interferes with assignment to or performance of duty.  The conditions include, but are not limited to, disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired.  The commander will refer the Soldier for a medical examination and/or mental status evaluation in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition.

11. Title 38, United States Code, sections 310 and 331, permits 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 medically 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that she sustained a disabling condition while on active duty.

2.  The applicant's administrative separation under the provisions of Army Regulation 635-200, paragraph 5-17, due to a condition (not a disability) was in compliance with all requirements of law and applicable regulations with no indication of procedural errors which would have jeopardized her rights.  

3.  The fact that the VA, in its discretion, has awarded the applicant 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.

4.  The ABCMR does not grant requests for changes to discharges for the purpose of making the applicant eligible for benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20150000709





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ABCMR Record of Proceedings (cont)                                         AR20150000709



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