MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:             27 April 1999                 
	DOCKET NUMBER:     AC98-09773
				     AR1999023427

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Raymond V. O'Connor, Jr.		Member	
	Mr. Curtis L. Greenway		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, the applicant requests physical disability retirement (for 100 percent service connected disability), monetary compensation for her pain and suffering, back pay for her years of service and retroactive promotion to pay grade E-6.  

APPLICANT STATES:  She was fraudulently discharged from the Army.  Personnel in her chain of command and military hospital personnel conspired to cover up the fact that her placenta was left in her 3 months after child birth, causing her to nearly bleed to death.  She was given a discharge for unsatisfactory performance, which has prevented her from obtaining meaningful employment in the private sector.  Her pain and suffering are constant.  She was a career soldier who served to the best of her ability, but no one helped her when she needed help.  

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant enlisted in the Army Reserve on 14 August 1984, completed training as a personnel administrative specialist, and was released from active duty and returned to her Reserve unit in Florence, South Carolina on                  24 July 1985.  On 11 March 1986 she enlisted in the Regular Army for three years and was assigned to Fort Lewis, Washington.  While at Fort Lewis, the applicant received three awards of the Army Achievement Medal, the Army Good Conduct Medal, and a Certificate of Achievement.   In June of 1989 she was recommended for promotion to grade E-5.  In April of 1990 she was reassigned to the 103d Military Intelligence Battalion in Germany.

A 15 February 1991 record of counseling indicates that her performance and professional attitude would be evaluated in 30, 60, and 90 days; in addition, she was given a listing of her duties as a SIDPERS clerk.  At the end of the 90 day period, should she not improve, appropriate action would be taken.  If she did improve her performance and attitude she would remain with her unit.

A 10 March 1991 medical report indicates that the applicant was admitted to the emergency room at the (German) regional hospital of St. Marienberg in Helmsted because of heavy vaginal bleeding for the past 8 days and for pain in her lower abdomen.  Suspicion of endometriosis (the growth of endometrial [the inner lining of the uterus] tissue in abnormal locations, as on the ovaries, or within the peritoneal cavity) with beginning adnexa (accessory parts or appendages of an organ) on both sides was diagnosed.  A curettage was performed and she was given antibiotics.  A final exam done at the request of the applicant, indicated that the uterus was still very pressure dolent, both adnexa were still dolent, which indicated there was still an inflammable process.  She was instructed to report to the local Army hospital immediately upon her return to Wurzburg. 

In a 25 March 1991 review of a report of an informal investigation, a Judge Advocate General (JAG) officer informed the applicant’s battalion commander that there was sufficient evidence to support initiation of administrative elimination proceedings against the applicant for unsatisfacory performance; however, in view of the fact that the command had given the applicant 90 days from 15 February 1991 to improve her performance, initiation of separation action prior to 17 May 1991 would be inappropriate.  He recommended that the applicant be counseled immediately as to the command’s intent to initiate separation action upon expiration of the 90 day period, unless her performance and attitude improved. 

In a 9 May 1991 report of medical examination, the applicant was determined to be medically qualified for separation with a physical profile of 1 1 1 1 1 1.  The examining physician stated that her right large toenail was deformed, she had calluses on the balls of her feet, scars (undecipherable) and left chest, facial and neck numbness (undecipherable).  He continued by stating that she had facial numbness as a result of post op nerve damage, and abd (?) pain (undecipherable).  In the report of medical history, the applicant stated that she had surgery on her left lung in 1989 due to spontaneous pneumothorax.  She cites other medical problems and procedures (which are unreadable).  She did say that she underwent a D&C (dilation and curettage) in a German hospital.

On 3 July 1991 a physician at the 67th Evacuation Hospital (in Germany) provided a medical statement concerning the applicant, stating that she arrived in Germany in April of 1990, and had a pregnancy test on 23 April, which proved positive.  She was seen at the hospital on various occasions in May and June for vaginal bleeding.   She was given a pregnancy profile on 4 June 1990 with an estimated birth date of 20 October 1990, which was incorrect.  The date should have been 20 December 1990.  The doctor did say that her old pregnancy profile was not updated.  The doctor stated that the applicant was seen for a total of 13 prenatal visits during her antepartum period.  She was seen in September for gastroenteritis, in October with symptoms of bronchitis and URI symptomotology, returned in November doing well with her pregnancy; however, at that time mentioned difficulties with her unit in terms of her profile.  She was given a sick slip for annotation of her working a 40 hour week, noting that she should work only 8 hours per day.  On 29 November 1990 she returned for increasing hemorrhoid problems associated with her pregnancy.  She delivered her baby on 2 December 1990, the post partum course complicated by a bout of parotiditis (infection of the salivary glands of the right cheek).  She was treated and discharged on 42 days of convalescent leave.   

He continued by saying that on 19 February 1991 she reported in to the clinic with vaginal bleeding, stating that she had been bleeding for approximately six weeks after giving birth.  She was diagnosed as having endometritis (infection of the lining of the uterus), placed on antibiotics, and told to return to the clinic.  She returned on 27 February with a similar complain of vagina bleeding and placed on antibiotics and pelvic cultures were obtained.  Follow up on 13 March 1991 revealed that she was admitted to a German hospital for a D&C on 9 March and was found to have a retained placenta which was removed.  She was placed on antibiotics, and given 48 hours of quarters.  She returned on 19 March and examination showed a normal sized uterus with slight tenderness.  Her diagnosis was mild endometritis secondary to retained placental, a condition of mild infection of the lining of the uterus.  She was placed on antibiotics with a profile.  She returned again on 22 March 1991 and again on 22 May for a follow up with abdominal discomfort diagnosed at that time as abdominal pain due to muscular-skeletal strain.  She returned on 23 May for a physical examination because of discharge proceedings and it was noted she had some abdominal discomfort.  An upper GI was recommended. 

The doctor stated that she had reported to the family practice clinic on numerous occasions during her pregnancy for illness related to her pregnancy, which was resolved.  She continued to have post partum problems to include retained placenta which required D&C.  In addition she had surgical post op complications with infection of the uterus requiring antibiotics for one months.  He stated that during the pregnancy and post partum period it was conceivable that the amount of physiologic stress with infections could have added to a decline in her job performance as well as emotional status.  He stated that now that she was in good health her performance and mental faculties should return to normal. 

The applicant’s commanding officer recommended that the applicant be discharged from the Army under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance of duty.  He stated that the applicant was a substandard performer, despite repeated counseling and training to correct the problem, that she had repeatedly been insubordinate to her superiors, refused to accept responsibility, instead finding excuses for her errors.  She had been given numerous opportunities to correct her deficiencies to no avail, and consistently displayed apathy toward military authority.  That official indicated that he had enclosed 30 records of counseling, a report of mental status evaluation, and a report of medical examination, with his recommendation.  He recommended that she be issued a General Discharge Certificate.  

The applicant acknowledged receipt of the proposed action, consulted with counsel, and stated that she understood the basis for the contemplated action, its effects, and the rights available to her.  She stated that she understood the nature and consequences of the general discharge that she might receive.  She submitted statement  in her behalf, to include 26 enclosures, most of which were from NCOs, other soldiers, and one from an officer, attesting to her good character, her average or above average performance of duty, her helpfulness, dependability, and integrity.  Some of these individuals opined that she would best be served by a rehabilitative transfer from her current unit. 
 In response to her commander’s recommendation that she be discharged for unsatisfactory performance, the applicant stated, on 11 July 1991, that any substandard work performance was due to a combination of lack of training and NCO guidance, and her medical problems resulting form her pregnancy.   She stated that members of her chain of command had been unsupportive concerning her medical problems, that she was placed on a 40 hour work week because of her profile, causing problems with her work schedule and her supervisors.  She stated that the profile was violated up until the time of the birth of her baby on 2 December 1990.  She stated that she encountered hostility after returning to work; and that when she deployed to the field in March of 1991 she experienced heavy bleeding, was hemorrhaging, and was counseled by an NCO for not being able to take care of her personal hygiene in the field.  She eventually was admitted to a German hospital and diagnosed as having placental pieces left in her after child birth.  The applicant went on to say that her job performance had been satisfactory except, apparently when working as a SIDPERS clerk.  She met all requirements for promotion except for attendance at PLDC.  She has had numerous problems with her SIDPERS job, provided no training, and no support, but still managed to get a satisfactory rating on an inspection.  She requested a rehabilitative transfer to show what a good performer she was.

In a 11 July 1991 letter to the applicant’s battalion commander, her defense counsel requested that she be given a rehabilitative transfer and not be discharged for unsatisfactory performance.  He stated that she had spent only 47 of the promised 90 rehabilitative days working as a SIDPERS clerk, and 14 of those days were weekends.  Her performance was not objectively evaluated nor was she afforded anything close to 90 days in which to overcome any performance deficiencies.

On 16 July 1991, the applicant’s battalion commander, the separation authority, approved the recommendation that the applicant be discharged for unsatisfacory performance and directed that she receive a General Discharge Certificate.

The applicant was discharged on 31 July 1991 under the provisions of Army Regulation 635-200 for unsatisfactory performance.  She had 5 years, 5 months, and 20 days of service, and 5 months and 6 days of prior active service.

A 14 February 1994 medical document shows that the applicant indicated that she was examined because of her inability to conceive for one  year, that she had a baby in 1990, and bleeding, and had a hemorrhage, and had to have a D&C in a German hospital and found to have retained placenta.  She was doing fine now, but had some cramps occasionally with her menses.  Her vulva and vagina appeared normal; her cervix, normal; and her uterus of normal size with some mild tenderness in the cul de sac, but no adnexal or rectal masses.  The diagnosis was mild pelvic pain.
In a  13 April 1994 medical examination for infertility, a doctor at the Tuomey Regional Medial Center OB-GYN clinic in Sumter, South Carolina stated in summary:  patent fallopian tubes bilaterally with mild tubal ectasia proximally on the left, and mild diffuse intrauterine scarring and adhesions.

A 13 February 1995 report from a physician at the Baptist Medical Center in Columbia, South Carolina, who performed surgery on the applicant on that date (a hysteroscopy and a laparoscopy with laser ablation of suspected endometriosis and hydortubation of fallopian tubes) found that there was some scarring on the posterior aspect of the uterine fundus from possible past uterine perforation from a prior D&C.  There was some scarring on the left uterosacral ligament that appeared to be consistent with endometriosis.  There were no pelvic adhesions.  The cul-de-sac was free of endometriosis.  The tubes and ovaries were free of adhesions.  The doctor described the procedure used during the operation, stating again that there was some scarring on the posterior aspect of the uterus, which was not adhesed to anything up in the abdomen.  It was in the area where a perforation would occur during a D&C.  It appeared to be a scar from a perforation and not from endometriosis.  There was a small scar of the left uterosacral ligament that had a stellate type of appearance to it, which was possibly due to endometriosis, and the area was ablated with laser.  Both ovaries were grossly normal with no evidence of endometriosis, although the reproductive viscera did have a hyperemic appearance to it somewhat like someone who had an infection or inflammatory response.  He continued by saying that where the scar had been noted on the external surface of the uterus, there appeared to be possibly some scarring on the endometrial side too with an indention over what was felt to be the same general area, possibly again due to old perforation from a prior D&C.   The doctor stated that the applicant went to the recovery room in stable condition.  His postoperative diagnosis was infertility.  
In a 29 February 1996 statement, a doctor in the department of neuropsychiatry at the University of South Carolina school of medicine stated that the applicant had been evaluated for approximately one year in the mental hygiene clinic, and that in the professional clinical judgment of the personnel at that clinic the applicant was suffering from major depression and anxiety due to her physical problems and psychological trauma that she experienced in the Army.  

On 5 March 1996, the Army Discharge Review Board granted the applicant’s request to upgrade her discharge to honorable and changed the reason for her discharge from “unsatisfactory performance” to “Secretarial Authority.” 

In a 24 August 1996 medical report a physician at the Tuomey Regional Medial Center indicated that the applicant had been admitted on 19 August 1996 with an estimated delivery date of 7 October 1996.  She had spontaneous premature ruptured membranes, continued to leak fluid, and induction of labor was begun with delivery of a 4 pound 15 ounce male infant.  Postpartum course was uncomplicated.  The applicant was discharged home in satisfactory condition.

On 26 March 1997 this Board denied the applicant’s request to change her reentry code (RE code) from RE-3 to a more desirable RE code.  On                 15 July 1997 a member of congress was notified of this action, and also informed that this Board was not empowered to make entitlements for pain and suffering as the applicant had requested. 

In a 13 October 1997 medical report, a doctor at the Sumter OB-GYN clinic stated that at the time of her D&C (in Germany in 1991) she was told that she had the problem of inflammatory disease of pelvis.  She stated that she experienced problems on and off since then.  In 1994, when he saw her, there was a finding of some adhesions inside the uterus as well as some possible low spillage of dye form the fallopian tubes.  In February 1995 another doctor diagnosed her as having a defect in the lining of the uterus, where she had the D&C and that there was some swelling of the distal proton of the fallopian tube as well as some endometriosis.  He thought there was a suggestion of a perforation in the posterior part of the uterus and a diagnosis of endometriosis was made at that time.  She subsequently conceived at approximately 32 weeks. The doctor at Sumter stated that the applicant came in for consultation regarding the problem with disability, and that his review of all the records would be that all of her problems did stem from the delivery back in 1990, with the retained products of conception with infection, after that which led to inflammatory disease of the pelvis and adhesions of the uterine cavity.  There was a possiblity of perforation at that time which would lead to things like endometriosis; however, it could not be diagnosed until 1995.  Therefore, it could not be established whether or not she had endometriosis until that time; however, he suspected that it was there for a significant length of time.

In October 1997 a hearing was held before the board of veterans’ appeals. The matter had originally come before that board on appeal of a March 1994 rating decision of the regional office.  The board noted that the applicant had recently filed a claim of entitlement to service connected for post traumatic stress disorder (PTSD), but the claim had not yet been adjudicated.  This board remanded the case to the regional office in order for that office to provide the applicant an opportunity to submit additional argument and evidence in support of her claim, i.e., endometriosis, facial nerve damage as a result of oral surgery, and entitlement to an evaluation in excess of 10 percent for service-connected residuals of a thoracotomy, to include recurrent pneumothorax.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 establishes policy and prescribes procedures for separating members for unsatisfactory performance.  That chapter states, in part, that commanders will separate a soldier for unsatisfactory performance, when it is clearly established that in the commander’s judgment, the soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier, or the ability of the soldier to perform duties effectively in the future, including potential for advancement or leadership, is unlikely.  If the soldier has 6 or more years of total active service and has not executed a waiver, a board of officers will be convened to determine whether the soldier should be separated for unsatisfactory performance. The service of soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, she must be unable to perform the duties of her office, grade, rank or rating.

Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that she was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

Army Regulation 635-40 was changed by Department of the Army message, dated 27 February 1973, to provide that when a member is undergoing evaluation because of a referral arising during processing for separation for reasons other than physical disability, her continued performance of duty until she is scheduled for separation creates a presumption that the member is fit for duty.

Army Regulation 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

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:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant was separated because of unsatisfactory performance of duty, and not because she was physically unfit for military service.  At the time of the separation physical examination, competent medical authority determined that the applicant was then medically fit for retention or appropriate separation.  Accordingly, the applicant was separated from active duty for reasons other than physical disability.

2.  Additionally, the applicant's continued performance of duty raised a presumption of fitness which she has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with her separation.  The Board notes that both the applicant and her counsel at that time had requested that she be given a rehabilitative transfer, indicating that the applicant wanted to remain in the Army, with the clear implication that she too felt that she was medically fit for retention and was able to perform her military duties.

3.  The fact that the VA, in its discretion, has awarded the applicant a disability rating (for residuals of a thoractomy, to include recurrent pneumothorax) 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 award of VA compensation does not mandate disability retirement or separation from the Army.  The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation.  The VA is not required to determine fitness for duty at the time of separation.  The Army must find a member physically unfit before she can be medically retired or separated.

5.  The VA 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, the applicant'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 her for VA benefits based on an evaluation by that agency.

6.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

7.  No medical evidence has been presented by the applicant to demonstrate an injustice in the medical treatment received in service.  The applicant did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

8.  There is no evidence to show that the applicant was not paid during her military service.  Her request for back pay for years of service is rejected, as is her request for retroactive promotion to E-6.  She has provided no basis to consider this request.  The applicant has previously been informed that this Board is not empowered to make entitlements for pain and suffering.  Nothing has changed.  The Board cannot consider this request. 

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

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__jns____  __rvo___  __clg___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-09773/AR1999023427	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990427	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1. 108.00		
2.		
3.		
4.		
5.		
6.