IN THE CASE OF: BOARD DATE: 18 February 2016 DOCKET NUMBER: AR20150007992 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 the narrative reason for her discharge be changed from "Entry Level Status Performance and Conduct" to "Discharge due to Disability." 2. The applicant states she was injured in December 1982 during basic training. She had a fracture to her pelvis (left pubic ramus) which made it very painful to walk and stand. The medical staff did not issue a cane nor a crutch to assist in preventing weight on the pelvic girdle. She had to walk, perform limited exercise, and perform KP (kitchen patrol) with no support to avoid pain for approximately two months. She requested a medical discharge, wasn't given a written request form to be processed, and was given a verbal denial. After the denial of the medical discharge she asked for a general discharge. Her Disposition Form was dated 10 February 1983. She was discharged 1 February 1983. Her transportation paperwork, dated 1 February 1983, also proves she wasn't given an opportunity to receive an examination to reveal her injury at discharge. 3. The applicant provides: * service medical records, dated 15 from November 1982 - 24 January 1983 * Standard Form 1109-C (U.S. Government Transportation Request) * her discharge orders * DA Form 2496 (Disposition Form), dated 10 February 1983 * two letters, dated 5 September and 29 December 2003 from Department of Veterans Affairs (VA) Regional Office (VARO), St. Petersburg, FL * a certificate of eligibility (COE), dated 16 October 2008, from the VA Home Loan Eligibility Center, Winston-Salem, NC * applicant's letter, dated 9 July 2009, to the Claims and Appeal Review Board (VA) * a letter, dated 17 April 2013, from VARO Decatur, GA * a letter, dated 30 January 2015, from the VA * a letter, dated 19 March 2015, from the Atlanta Regional Loan Center, Decatur GA * a letter, dated 2 April 2015, from the applicant to the COE Department (Atlanta Regional Loan Center) 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 5 November 1982, she enlisted in the Regular Army for 3 years. On 15 November 1982, she was assigned to Company A, 3rd Battalion, 1st Basic Training (BT) Brigade at Fort Jackson, SC. She did not complete BT. 3. The service medical records submitted by the applicant show: a. On 8 December 1982, she received treatment for pain in the groin area for 2 days after tripping over her weapon and possibly strained tendons in thigh area. The assessment was possible muscle tension. b. On 15 December 1982, she was treated for pain in her groin area for the last week. Impression was muscle tension and she was referred to the physical therapy (PT) clinic for further evaluation. c. On 26 December 1982, she was treated and released from Lee Memorial Hospital emergency room for pain in her left hip joint. d. A Profile Sheet TL-2, dated 5 January 1983, advised the following restrictions for 10 days: * no marching more than 1 mile per day * no running * no participation in quick 1 - 5 second rushes (sprints) * no obstacle or confidence course e. Four tags apparently listing the applicant's limitations with expiration dates: * no crawling, stooping, running, jumping, or prolonged standing or marching to expire 10 December 1982 * no squat thrusts, no running, to expire 16 December 1982 * no marching over 1 mile, no running, no 1-5 second rushes, no jumping to expire 15 January 1983 * no marching or running more than 1/4 mile, no horizontal bars, no backpack, no KP and no prolong standing to expire 28 January 1983 f. On 5 January 1983, her hip pain continued and she was sent to the PT clinic for re-evaluation and exercises. g. Two DD Forms 689 (Individual Sick Slip) dated: * 5 January 1982 (3) for left hip pain, sent to PT clinic to return on 14 January 1983 * 24 January 1983 for appointment at PT. Remarks stated she was not to do KP or any prolonged standing, no heavy lifting or walking h. She was seen during her 6th week of BT for hip pain for the last 4 weeks after falling on her hip. X-ray revealed a stress fracture, left pubic ramus. i. She was rechecked during her 7th week of BT for fracture of her left pubic ramus. The assessment was left pubic ramus stress fracture. She was placed on profile for 14 days. j. A DA Form 2496, dated 10 February 1983, shows the applicant did not desire a separation medical examination. Her name is printed on the form. There is no signature of the applicant on the form. Chief Warrant Officer Three C___ reviewed the applicant's service medical records and determined she did not require a medical examination for separation. 4. On 17 January 1983, her commander notified her he was initiating action to discharge her from the Army under the provisions of Chapter 11, Trainee Discharge Program of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel). a. The specific reasons for this action was the applicant's inability to meet the standards of military training, poor duty performance, and attitude toward the military service. b. Her discharge would be an entry level separation with uncharacterized service. Due to non-completion of requisite active duty service, VA and other benefits normally associated with completion of honorable active duty service will be affected. c. She was advised she had the right to: * Request counsel by a commissioned officer of the Judge Advocate General's Corps (JAG) * request a separation physical if she felt her physical status had changed since her last examination * submit statements in her own behalf * obtain copies of the documents supporting her separation that would be sent to the separation authority * waive her rights in writing 5. On 17 January 1983, in the first endorsement to her proposed separation action, the applicant acknowledged notification of her proposed separation. a. She understood that due to non-completion of requisite active duty service, VA and other benefits normally associated with completion of honorable active service would be affected. b. She did not desire to consult with a commissioned officer from JAG. c. She did not desire to make any statements or submit a rebuttal in her behalf. d. She did not desire to have a separation medical examination. 6. On 17 January 1983, in the second endorsement to her proposed separation action, to the battalion commander, her commander stated: a. Attention was invited to the attached counseling statements. b. Reasons for her substandard performance were: * she was the worst malingerer in the entire company * she had been on sick call eight times * she had no motivation to become a Soldier and constantly avoided difficult training and physical fitness training by feigning illness or injury * she could not accomplish a task with direct supervision * on her last physical fitness test she only did two pushups c. She was not recycled. A waiver was requested for rehabilitation because she would never a productive Soldier. He recommended discharge as quickly as possible d. The applicant refused counsel by a commissioned officer from JAG. 7. On 19 January 1983, in the third endorsement to her proposed separation action, to the brigade commander, the battalion commander stated: a. Attention was invited to the attached counseling statements. b. The reasons for the applicant's substandard performance were: * she was an immature and unmotivated Soldier who was unable to do pushups * she admitted to constantly going on sick call and not being ready for military service * her progression to two pushups at this point in the cycle indicated that she was not physically able to maintain the physical readiness training standards c. He recommended the waiver for rehabilitation be approved. 8. On 27 January 1983, in the fourth endorsement to her proposed separation action, the brigade commander reviewed her discharge under the Trainee Discharge Program and approved her discharge under the provisions of chapter 11 of Army Regulation 635-200. Her service was to be uncharacterized. A reassignment for rehabilitation purposes was waived. 9. On 1 February 1983, she was discharged. She completed 2 months and 27 days of active service during this period that was uncharacterized. The narrative reason for separation on her DD Form 214 states, "Entry Level Status Performance and Conduct." 10. A letter, dated 5 September 2003, from VARO St. Petersburg, FL notified the applicant a determination had been made to increase her service connected disability rating for residuals of a stress fracture of her left pubic ramus from 0 percent (%) to 10% effective 1 June 2003. 11. A letter, dated 16 October 2008, from the VA Home Loan Eligibility Center provided the applicant with a COE for loan guaranty benefits. 12. A letter, dated 17 April 2013, from VARO Decatur, GA notified the applicant a determination had been made to: * grant service connection for "Leg length inequality/short leg syndrome, right" with a disability rating of 0% effective 9 March 2012 * increase her disability rating for "Adjustment disorder with depressed mood" from 50% to 70% effective 9 July 2012 13. A letter, dated 30 January 2015, from VA is a summary of the benefits the applicant was receiving as the date of the letter. The letter shows her combined service connected valuation was 100%. 14. A letter, dated 19 March 2015, from the Atlanta Regional Loan Center denied her request for a COE for VA hone loan benefits. On 2 April 2015, she appealed that decision. 15. 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 is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a Medical Evaluation Board (MEB). Those members who do not meet medical retention standards based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness) will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition. 16. Chapter 11 of Army Regulation 635-200, in effect at the time, set policy and provided guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in an entry level status. a. Separation was warranted when unsatisfactory performance or minor disciplinary infractions were evidenced by: * inability * lack of reasonable effort * failure to adapt to the military environment b. The policy applied to Soldiers who: * were in an entry level status and had completed no more than 180 days of continuous active duty before the date of the initiation of separation action * could not or would not adapt socially or emotionally to military life * had demonstrated character and behavior characteristics not compatible with satisfactory continued service * had failed to respond to counseling c. Entry level status is defined as the first 180 days of continuous active service or the first 180 days of continuous active service after a service break of more than 92 days of active service. d. Entry level separation - uncharacterized was used for separation under the provisions of this chapter. 17. Title 38, United States Code, 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. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings. DISCUSSION AND CONCLUSIONS: 1. The applicant's treatment for a stress fracture of her left pubic ramus was well documented in her service medical records. However, the evidence does not show she was not medically qualified to perform duty or failed to meet retention criteria. 2. She contends she wasn't given an opportunity to receive an examination to reveal her injury at discharge. The DD Form 2496 did not appear to contain her signature on the form and it was dated 9 days after her discharge. The reason for this discrepancy is not known. However, in the first endorsement, dated 17 January 1983, to her proposed separation action the applicant specifically indicated that she did not desire to have a separation medical examination. In addition, she refused to consult with a JAG officer in connection with her separation. 3. She was still in an entry level status at the time she was discharged. Chapter 11 of Army Regulation 635-200, under which she was processed, specifically required that her service be uncharacterized. 4. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case. The records contain no indication of procedural or other errors that would tend to jeopardize his rights. 5. The applicant received a compensable disability rating of 10% for residuals of her stress fracture of her left pubic ramus effective 1 June 2003, 20 years after her discharge. 6. The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s employability. Accordingly, it is not unusual for the VA to award a veteran a disability rating when the veteran was not separated due to physical unfitness. Furthermore, the VA can evaluate a veteran throughout his or her lifetime, awarding and/or adjusting the percentage of disability of a condition based upon that agency’s examinations and findings. 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) AR20150007992 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007992 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1