BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20150017024 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ ___x_____ __x__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20150017024 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20150017024 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 physical disability retirement. 2. The applicant states: a. On 1 November 2006, she was placed on a physical file which stated that she was pending a Medical Evaluation Board (MEB). She met with the Physical Evaluation Board Liaison Officer (PEBLO) to discuss her board packet. She was told that she needed to have a narrative summary (NARSUM) done. She was moved to ten different providers during this process and no one completed her NARSUM. b. She tried reaching out to her PEBLO several times and she got no response. She was eventually informed that her MEB was terminated and that she had no other option than to ETS. She had no intention of leaving the Army when she did, but she came to the realization that she could no longer take a physical fitness test or deploy. c. She knew she could not reenlist in the Army and that her career had come to an end. d. She did not believe she could change the type of discharge she received until she spoke to some people at work, which is the reason or the delay in her submission. 3. The applicant indicates that she provided additional documents, but they were not received. 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 28 December 2001, the applicant enlisted in the Regular Army for 3 years. She completed training as a paralegal specialist. She remained on active duty through two extensions and one reenlistment. 3. The applicant was honorably discharged on 7 November 2008 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 4, at the completion of her required active service. 4. During the processing of this case, an advisory opinion was obtained from the Army Review Boards Agency (ARBA) Senior Medical Advisor who stated that a review of the applicant's electronic medical record (AHLTA) revealed clinical encounters from January 2004 through September 2008. Her records show she met medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, and following the provisions set forth in Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) for the following conditions: * bilateral (right greater than left) hip pain * cervical dysplasia * history of abdominal and chronic pain * history of depression * history of right wrist ganglion cyst excision * history of pregnancy 5. The ARBA Senior Medical Advisor stated no evidence of a medical disability or condition was found which would support a change to the character or reason for the discharge in this case. 6. The applicant was provided a copy of the advisory opinion for her review and comment. She did not respond. REFERENCES: 1. Army Regulation 635-40 provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he 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. 2. Army Regulation 40-501 provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 3. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. Although in her application to this Board, she did not state what condition(s) she believed would have qualified her for a medical retirement, there is no evidence in the available records that shows she failed to meet medical retention standards at the time of her discharge. 2. Her records show she met medical retention standards in accordance with Army Regulation 40-501, chapter 3, and following the provisions set forth in Army Regulation 635-40 for several conditions. The medical advisor in this case found no evidence of a disability that would support changing the reason for her discharge. 3. In the absence of evidence to the contrary, it must be presumed that what the Army did in her case was correct. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017024 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017024 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2