PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           02 MAY 2002
	DOCKET NUMBER:   AR2001058480

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

	Mr. Carl W. S. Chun		Director	
	Ms. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Christopher J. Prosser		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that her discharge from the Army National Guard be changed to honorable or medical.

3.  The applicant states that she was injured while on active duty for training, and should have been medically separated.  In support of her request she submits copies of her medical records, her NGB Form 22 (National Guard Bureau Report of Separation and Record of Service), and her Department of Veterans Affairs disability decision.

4.  The applicant’s military records show that she enlisted in the Puerto Rico Army National Guard on 23 October 1998.

5.  On 16 April 1999, while on active duty for training she injured her left knee.  

6.  On 28 April 1999, a DA Form 2173 (Statement of Medical Examination and Duty Status) determined that the applicant’s injury was temporary, in the line of duty, with a diagnoses of left knee bursitis.  

7.  Documents provided by the applicant indicate she was evaluated on numerous occasions from April to June 1999, by military and civilian doctors for knee pain which resulted in several temporary physical profiles.  It appears the applicant's medical evaluations ended in July 1999, with a recommendation of physical therapy with strengthening exercise to return her knee to full function.  There is no additional medical documentation in the applicant's records.   

8.  The facts and circumstances concerning the applicant’s discharge are not in the available records, however, on 6 October 2000, she was discharged from the Army National Guard, under the provisions of National Guard Regulation 600-200, paragraph 8-26c, for entry level performance and conduct.  Her NGB Form 22 indicates she had 1 year, 11 months and 14 days of service, and that her service was uncharacterized.

9.  Subsequent to her discharge, on 10 April 2001, the Department of Veterans Affairs awarded her a 30 percent disability rating for residual left knee injury-prepatellar bursitis. 

10.  On 21 June 2001, an advisory opinion was obtained from the Board's Medical Staff, which states that the applicant’s military medical documentation ends in July 1999, and that there is no documentation in her records of her problem being permanent or disqualifying.  They concluded that although the applicant suffered an injury while on active duty there was nothing in her records to support the claim that the injury was the cause of her discharge.  The mere fact of service connected disability payments from the VA does not support the claim for a Medical Discharge.  The applicant was provided a copy of the advisory opinion and has not responded.
11.  The Board received additional guidance from the Office of the Deputy Chief of Staff for Personnel, and the National Guard Bureau, Enlisted Policy Office, which recommended that if the Board elected to change the applicant’s characterization of service to honorable then the authority for her separation should be changed to secretarial authority, or for the convenience of the Government.  The applicant was provided a copy of the recommendation and has not responded. 

12.  Army Regulation 135-178, states in pertinent part, that an individual will be separated while in an entry level status when they have completed no more than 180 days of continuous active military service by the date of separation, and that the individual's service will be uncharacterized.

13.  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.  Furthermore, unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

CONCLUSIONS:

1.  Although documents associated with the applicant’s entry level separation action are not in the files available to the Board, it is clear that she was separated well after her initial 180 days of service.  It is possible that actions to administratively separate the applicant were initiated prior to her reaching 180 days of service, then suspended while she underwent medical treatment, and subsequently resurrected when her medical condition did not result in initiation of disability processing.  However, the fact remains that the applicant had nearly 
2 years of service at the time of her separation and as such it would be appropriate and in the interest of justice and equity to change her uncharacterized service to honorable, and the authority and reason to secretarial authority.

2.  The evidence of record indicates she did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.  The fact that she is receiving disability compensation from the VA is not a basis to change the basis for her separation nor grant her disability compensation from the military.

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army record related to this case be corrected by showing that the individual concerned was separated from the Army National Guard on 6 October 2000 with an honorable discharge due to secretarial authority.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__FNE __  __WTM__  __CJP__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Fred N. Eichorn_____
		        CHAIRPERSON

INDEX

CASE ID	AR2001058480	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020502	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.