IN THE CASE OF: BOARD DATE: 3 March 2016 DOCKET NUMBER: AR20150002884 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 discharged for a medical disability. 2. The applicant believes her military records should be changed to reflect a medical discharge. She was discharged from the Army because she had stress fractures in her right hip. After she was discharged she had to have surgery. Her doctors told her the pain she experiences could be permanent. Since the injury she incurred on active duty, she has pain when she drives, runs, during intercourse, when standing for long periods of time, and with normal activities she was able to perform before entering active duty. This injury/condition will affect her for the rest of her life. The chronic pain she lives with has completely altered her life. 3. The applicant provides: * Department of Veterans Affairs (VA) decision document * Standard Forms (SF) 600 (Chronological Record of Medical Care), dated from 7 September 2011 to 23 November 2011 (23 Pages) * Patient Lab Inquiry forms, dated from 1 September 2011 to 14 October 2011 * five Radiology Exam Inquiry forms, dated 1 December 2011 * Medication Profile form * four Memoranda (separation packet), dated 23 November 2011, 1 December 2011, 5 December 2011, 7 December 2011 * DD Form 214 * Orders Number 060-044, dated 29 February 2012 * Operative Report, dated 2 March 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. The applicant enlisted in the New Jersey Army National Guard (NJARNG) on 28 July 2011 and entered initial Active Duty for Training (IADT) on 31 August 2011. 3. She provided a series of SFs 600 dated 14 October 2011 showing she received medical care for complains of left hip pain, right groin pain she described as achy, and right knee pain that sent shooting pain up her thigh and hip. She stated she had been experiencing the pain for approximately three weeks and indicated the pain was aggravated by running, walking up an incline, and weight bearing. She was given crutches and instructed on their use. It appears she was also issued a medical profile; however, the profile is not available for review in this case. 4. She provided a series of SFs 600, dated 14 October 2011, showing she had a bone scan of the pelvis with special single-photon emission computed tomography (SPECT) imaging. The findings indicated: a. there was a faint uptake on the SPECT images only at the right femoral neck, compression side, consistent with minimal findings. No other hip or pelvic lesions were seen. Her diagnosis was listed as compression arthralgia of the pelvis/hip/femur. b. overuse uptake was noted at both medial knees and ankles. In addition, there was a focal uptake at the left and right first metatarsal bases [the bone in the foot just behind the big toe] consistent with stress fractures. 5. She provided an SF 600 dated 20 October 2011 showing she was seen in the physical therapy clinic. The medical notes indicate she had a Magnetic Resonance Image (MRI) which revealed a grade II right femoral neck stress reaction. These notes also stated her hips showed a full range of motion. 6. She provided an SF 600 dated 21 November 2011 showing she was seen in the physical therapy clinic for a follow up. She showed up to the clinic without her crutches. She was fitted with new crutches and told to use them at all times. 7. She provided a series of SFs 600 dated 23 November 2011 showing she was seen in the Ambulatory and Physical Therapy clinics. The medical notes from the Ambulatory clinic show she had a right hip stress injury and the Physical Therapy clinic recommended her separation in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17 (Other designated physical or mental conditions). Additionally, she had an MRI on 21 November 2011 which revealed a "slight worsening of marrow edema in the right femoral neck since 19 October 2011… consistent with progressing stress reaction/stress fracture." 8. Her record contains a memorandum issued by the Moncrief Army Community Hospital, Fort Jackson, SC, on 23 November 2011. This memorandum recommended her separation from military service under the provisions of Army Regulation 635-200, paragraph 5-17. The memorandum stated: a. The applicant had been under the care of the physical therapy clinic at the Troop Medical Clinic (TMC) for pain in her right hip. Her physical exam did not reveal any damage to soft tissue structures. However, she previously had a bone scan and Magnetic Resonance Image (MRI) which revealed a stress reaction in the femoral neck of the right hip, which is a precursor to a stress fracture. The findings were a result of the impact stresses from normal physical activities required in training (marching, running, and jumping). The physical therapist stated the femoral neck is not as strong as other areas of the bones and if the applicant continued high-impact activities she would be at a risk of breaking her hip. For this reason, the applicant was recommended to go home for 30 days to rest. Upon returning from leave, a recent MRI shows that the hip stress has slightly progressed; however, a break in the bone was not present. She was still having pain with activities and had hip pain since the 3rd week of basic combat training (BCT). b. Because this injury was a factor of overuse, a lack of an overall physical conditioning, and not yet a stress fracture, her physical therapist felt that separation from the military would be in the applicant's best interest at that time. Her physical therapist did not believe she would be able to meet the physical demands of Army BCT at that time. Her physical therapist stated, the applicant needed to develop an improved tolerance for impact related activity through a prolonged program of weight training and gradual walk-to-run program that was at least 6 months in length. The physical therapist further stated the applicant had been counseled not to run or jump for at least 8 more weeks and that she was not a Physical Training and Rehabilitation Program (PTRP) or an Existed Prior to Service (EPTS) candidate, and did not meet criteria for a Medical Board. 9. She provided a several Radiology Exam Inquiries dated 1 December 2011 showing she had an MRI of her hips. The impressions stated the "findings [were] consistent with right compressive aspect grade 2 stress fracture… [and] slight worsening of marrow edema in the right femoral neck since 19 October 2011. This is consistent with progressing stress reaction/stress fracture." 10. The applicant did not provide nor did her record contain a DA Form 3349 (Physical Profile). 11. On 1 December 2011, her immediate commander informed her of his intent to separate her from military service in accordance with Army Regulation 635-200, paragraph 5-17. He stated the reason for his proposed actions was that she was physically unable to complete BCT due to her stress reaction in the femoral neck of her right hip. He also stated he was recommending she receive an entry level separation with an uncharacterized discharge. Her immediate commander also informed her of her rights. The applicant acknowledged receipt on that same day. 12. On 1 December 2011, the applicant’s immediate commander formally recommended her separation from military service in accordance with Army Regulation 635-200, paragraph 5-17, with an entry level separation and an uncharacterized discharge. 13. On 5 December 2011, the applicant acknowledged she had been afforded the opportunity to consult with the trial defense service office and had received an administrative briefing on the basis of her contemplated separation, its effect, the rights available to her, and the effect of waiving her rights. She indicated she voluntarily, knowingly, and intelligently waived the opportunity to speak with legal counsel. She also indicated she did not wish to provide a statement. 14. On 7 December 2011, the separation authority approved her separation in accordance with Army Regulation 635-200, paragraph 5-17, and directed an entry level separation with an uncharacterized discharge. 15. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was released from ADT, discharged from the Reserve of the Army, and returned to the ARNG on 14 December 2011, under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of a condition, not a disability, with uncharacterized service. 16. Her NGB (National Guard Bureau) 22 (Report of Separation and Record of Service) shows she was discharged from the NJARNG with an uncharacterized character of service, on 15 December 2011, in accordance with National Guard Regulations 600-200 (Enlisted Personnel Management), paragraph 6-35c(5)(a), and Army Regulation 40-501 (Medical Fitness Standards for Retention and Separation, Including Retirement), chapter 2, for failure to meet medical procurement standards. 17. She provided an operative report, dated 3 February 2014 showing she had been diagnosed with "Right hip labral tear, hip pain, and femoroacetabular impingement." She underwent a "right hip arthroscopy, labral repair, and decompression of the subspine impingement." Her post-operative diagnosis was listed as "Right hip labral tear, hip pain, and femoroacetabular impingement as well as subspine impingement." 18. She provided a VA decision document showing the VA awarded her a 10% disability rating for her condition of "Stress fracture femur neck right hip, status post arthroscopy labral repair" on 16 September 2014. 19. An advisory opinion, dated 11 August 2015, was received from the Integrated Disability Evaluation System (IDES) Medical Director, Fort Stewart, GA. The advisory official stated, after a thorough review of the medical evidence submitted, she concluded the applicant should have been separated as a result of an MEB. a. The advisory official cited the following events as justification: (1) On 14 October 2011, the applicant was seen at the clinic complaining of pain in the right hip in the right inguinal region she rated a 5/10 on the pain scale. It was noted she had "inability to weight bearing, walk incline, run, better with rest, inability to sleep on the affected side." A bone scan was done and showed minimal changes, but bilateral stress fractures. X-rays of the hip were negative. An MRI of the right hip done on 19 October 2011 showed a right compressive aspect grade II stress fracture. (2) The applicant had three physical therapy sessions. The last session was on 23 November 2011. During the last session her physical therapist recommended her separation under the provisions of Army Regulation 625-200, paragraph 5-17 for other designated physical or mental conditions. (3) On 23 November 2011, she was seen by a physician's assistant to complete her chapter paperwork. b. The advisory official stated the applicant was incorrectly separated under the provisions of Army Regulation 635-200, paragraph 5-17. She should have either been recycled in BCT to give the right hip stress fracture enough time to heal (3 to 6 months) or, due to the severity of the condition, received an MEB to determine whether or not she was fit to continue in the military system. c. The advisory official recommended that the applicant be permitted to go before an MEB for her right hip condition. 20. The applicant did not respond to the advisory opinion. 21. The website for the Hayden Family Foot and Ankle Clinic states a stress fracture (sometimes called a "stress injury" or "stress reaction" if the bone has not actually cracked or fractured yet) is a common condition where a bone becomes weakened to the point of either almost breaking (stress injury/reaction) or actually breaking (stress fracture). The word "stress" is used because there has not been any one incident or traumatic event that led to the fracture, but rather too much repeated force or "stress" on the bone such that it starts to get weak and painful and can eventually crack. This would be different from a "traumatic fracture" where the broken bone is a result of a fall or isolated injury. 22. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 describes the different types of characterization of service. It states an uncharacterized separation is an entry-level separation. A separation will be described as an entry-level separation if processing is initiated while a member is in entry-level status. b. Chapter 5 (Separation for Convenience of the Government) states, unless the reason for separation requires a specific characterization, a Soldier being separated for the convenience of the Government will be awarded a character of service of honorable, under honorable conditions, or an uncharacterized description of service if in entry-level status. c. Paragraph 5-17 states commanders may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability (Army Regulation 635–40 (Physical Evaluation For Retention, Retirement, or Separation)), which interferes with assignment to or performance of duty. The regulation requires that the condition interferes with the Soldiers’ ability to perform duty, and requires that the diagnosis be so severe that the Soldier’s ability to function in the military environment is significantly impaired. When a commander determines that a Soldier has a physical condition that potentially interferes with assignment to or performance of duty, the commander will refer the Soldier for a medical examination 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. Separations under chapter 5 are separations for the convenience of the government. Unless the reason for separation requires a specific characterization, a Soldier being separated for the convenience of the Government will be awarded a character of service of honorable, under honorable conditions, or an uncharacterized description of service if in entry-level status. 23. Army Regulation 635-200 provides the following definition of entry-level status for Army National Guard (ARNG) and U.S. Army Reserve Soldiers (USAR): Entry-level status begins upon enlistment in the ARNG or USAR. For Soldiers ordered to initial active duty for training (IADT) for one continuous period, it terminates 180 days after beginning training. 24. Army Regulation 40-501, chapter 2 refers to medical conditions and states that disqualifying procurement medical conditions are listed in paragraphs 2–3 through 2–32. Unless otherwise stipulated, the conditions listed in paragraphs 2–3 through 2–32 are those that would be disqualifying by virtue of current diagnosis, or for which the candidate has a verified past medical history. a. Paragraph 2-10a(1) covers a limitation of motion in the hip and states a limitation of motion in the hips, less than that prescribed in paragraph 2-10a(1), due to a disease or injury is a medical condition [Hip (due to disease (726.5), or injury (905.2)): flexion to 90 degrees; no demonstrable flexion contracture; extension to 10 degrees (beyond 0 degrees); abduction to 45 degrees; and rotation of 60 degrees (internal and external combined)] . b. Paragraph 2-11 addresses fractures and states a current or history of contusion of bone or joint; an injury of more than a minor nature that will interfere or prevent performance of military duty, or will require frequent or prolonged treatment without fracture nerve injury, open wound, crush or dislocation, which occurred within the preceding 6 weeks in the lower extremities is a medical condition that does not meet the standard. c. Chapter 3 lists the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the required standards required for the individuals in paragraph 3–2. This may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring; may compromise the health or well-being of other Soldiers; and/or may prejudice the best interests of the Government if the individual were to remain in the military Service. [Hip injuries/fractures listed chapter 2 are not cause for referral to a Medical Evaluation Board (MEB)]. d. Paragraph 3–4 states possession of one or more of the conditions listed in this chapter does not mean automatic retirement or separation from the Service. Physicians are responsible for referring Soldiers with conditions listed below to an MEB. It is critical that MEBs are complete and reflect all of the Soldier’s medical problems and physical limitations. The PEB will make the determination of fitness or unfitness. The PEB, under the authority of the U.S. Army Physical Disability Agency, will consider the results of the MEB, as well as the requirements of the Soldier’s MOS, in determining fitness. e. Paragraph 3–13 (Lower extremities) states [Joint ranges of motion (ROM)] are a causes for referral to an MEB. If the ROM for hip flexion does not equal or exceed the measurements listed Hip—flexion to 90 degrees or extension to 0 degree). f. Paragraph 3–14 (Miscellaneous conditions of the extremities) states [the following types of fractures are cause for] referral to an MEB: (1) Malunion of fractures [fracture has healed in less than an optimal position], when, after appropriate treatment, there is more than moderate malunion with marked deformity and more than moderate loss of function. (2) Nonunion of fractures [when a broken bone fails to heal], when, after an appropriate healing period, the nonunion precludes satisfactory performance of duty. (3) Bone fusion defect, when manifested by more than moderate pain and loss of function. (4) Callus, excessive, following fracture, when functional impairment precludes satisfactory performance of duty and the callus does not respond to adequate treatment. g. Chapter 7 prescribes a system for classifying individuals according to functional abilities. The functions have been considered under six factors designated "P-U-L-H-E-S." Four numerical designations are used to reflect different levels of functional capacity. The basic purpose of the physical profile serial is to provide an index to overall functional capacity. Therefore, the functional capacity of a particular organ or system of the body, RATHER THAN THE DEFECT PER SE, will be evaluated in determining the numerical designation 1, 2, 3, or 4. (1) The "L - Lower extremities" factor is used for the concerns the feet, legs, pelvic girdle, lower back musculature and lower spine (lower lumbar and sacral) in regard to strength, range of motion, and general efficiency. (2) Four numerical designations are assigned for evaluating the individual’s functional capacity in each of the six factors. The numerical designator is not an automatic indicator of "deployability" or assignment restrictions, or referral to an MEB. The conditions listed in chapter 3 and the Soldier’s functional limitations, rather than the numerical designator of the profile, will be the determining factors for MEB processing. (a) An individual having a numerical designation of "1" under all factors is considered to possess a high level of medical fitness. (b) A physical profile designator of "2" under any or all factors indicates that an individual possesses some medical condition or physical defect that may require some activity limitations. (c) A profile containing one or more numerical designators of "3" signifies that the individual has one or more medical conditions or physical defects that may require significant limitations. The individual should receive assignments commensurate with his or her physical capability for military duty. (d) A profile serial containing one or more numerical designators of "4" indicates that the individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited. (3) A profile is considered permanent unless a modifier of "T" (temporary) is added. All permanent "3" and "4" profiles, for Soldiers on active duty, will be reviewed by an MEB physician or physician approval authority. If the profile is permanent, the profiling officer must assess if the Soldier meets the medical retention standards of chapter 3. Those Soldiers on active duty who do not meet the medical retention standards must be referred to an MEB. Soldiers who have one or more condition(s) that do not meet medical retention standards are referred to a MEB/PEB. 25. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides guidance on processing through the Physical Disability Evaluation System (PDES), which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB. The PEB evaluates all cases of physical disability equitably for the Soldier and the Army. It also investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board. It evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating. Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability. DISCUSSION AND CONCLUSIONS: 1. The advisory official incorrectly indicated the applicant's medical notes, dated 14 October 2011, stated she had an "inability to weight bearing, walk incline, run…" The medical notes stated the pain was "aggravated by running, walking up an incline, and weight bearing." There is a significant difference between being unable to conduct an activity and experiencing pain or discomfort when one conducts an activity. 2. The advisory official stated "a bone scan was done and showed minimal changes, but bilateral stress fractures." This is a misleading statement. The bone scan and medical notes pertaining to her hip stated "there was a faint uptake on the SPECT images only at the right femoral neck, compression side, consistent with minimal findings. No other hip or pelvic lesions were seen. Her diagnosis was listed as compression arthralgia of the pelvis/hip/femur. a. It appears the advisory official misinterpreted the medical notes pertaining to the bone scan. The applicant's, bilateral stress fractures were in her feet, not her hip. b. The applicant's request specifically pertained to the stress fracture of her hip, as this was the primary reason for her discharge. There is no indication that medical officials were overly concerned about the stress fractures in her feet. c. Furthermore, the issues pertaining to her feet were not the reason she was recommended for separation. 3. The advisory official stated, "An MRI of the right hip done on 19 October 2011 showed a right compressive aspect grade II stress fracture." This statement is untrue. The applicant provided an SF 600, dated 20 October 2011 which stated, "she had [an MRI] which revealed a grade II right femoral neck stress reaction." This means her stress reaction/injury had not yet progressed to the level of a stress fracture. 4. The advisory official concluded the applicant should have been separated from military service as a result of an MEB. She further stated, "The applicant was incorrectly separated under the provisions of Army Regulation 635-200, paragraph 5-17." a. The advisory officials statements and conclusions are inconsistent with pertinent Army regulations and do not accurately reflect the details of the medical evidence provided. b. The applicant has not provided, nor do her records contain a DA Form 3349 indicating she had a permanent L-3 profile. Profiling officials are required to assess whether or not Soldier meets the medical retention standards of Army Regulation 40-501, chapter 3 only after the issuance of a permanent profile. Further, a Soldier is only referred to an MEB if it has been determined that they do not meet medical retention standards. c. Army Regulation 40-501, paragraph 3-13 states, joint ROM for the hips is cause for referral to an MEB only when the ROM for hip flexion does not equal or exceed hip flexion to 90 degrees or extension to 0 degrees. She provided an SF 600, dated 20 October 2011, stating her hips showed a full range of motion. d. Army Regulation 40-501, paragraph 3-14 states the following types of fractures are cause for referral to an MEB: malunion of fractures [fracture has healed in less than an optimal position]; nonunion of fractures [when a broken bone fails to heal]; bone fusion defects; and excessive callus development following a fracture. e. The applicant was not diagnosed with a stress fracture, she was diagnosed with a stress reaction. Army Regulation 40-501, chapter 3 does not list stress fractures or stress reactions/injuries among the various medical conditions and physical defects which render a Soldier unfit for further military service and which fall below the standards required for military service. f. The evidence of record shows the applicant's stress reaction did not meet the regulatory criteria for referral to an MEB. 5. An MEB does not have the authority to direct a Soldier’s medical separation or discharge. An MEB may only make a determination as to whether or not a Soldier meets medical retention standards. If a Soldier does not meet medical retention standards, an MEB will refer that Soldier’s case to a PEB. Only the PEB is permitted to make findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability. A Soldier cannot be separated from military service for a medical disability without going before a PEB. 6. The applicant was separated under the provisions of Army Regulation 635-200, paragraph 5-17 because her medical condition, a stress reaction, did not meet the regulatory criteria for referral to an MEB; as such, it was considered a condition and not a disability. Further, she received an uncharacterized character of service because she was still considered an entry-level Soldier; meaning she was still within the first 180 days of service. 7. The evidence or record shows no indication that an error or injustice occurred in the applicant's 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) AR20150002884 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150002884 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1