IN THE CASE OF:  BOARD DATE:  21 May 2020 DOCKET NUMBER:  AR20170009871 


APPLICANT REQUESTS: 

.correction of her record to show she received a medical discharge with anhonorable characterization of service



APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record)

.Fort Jackson Sick Slip, dated 1 August 2001

.DA Form 3918-R (Facsimile Transmittal Header Sheet), dated 8 August 2001

.DA Form 2173 (Statement of Medical Examination (Line of Duty (LOD))), dated23 August 2001

.Fort Jackson Sick Slip, dated 30 August 2001

.DD Form 214 (Certificate of Release or Discharge from Active Duty), dated31 August 2001

.fax cover, dated 5 September 2001

.DA Form 705 (Army Physical Fitness Test Scorecard), dated 13 October 2001

.Order Number 045518, 99th Regional Support Command, dated 20 may 2002

.DA Form 4187 (Personnel Action), dated 12 April 2003

.memorandum, dated 12 April 2003

.Orders Number 012887, 99th Regional Readiness Command, dated 15December 2003

.Orders Number 012888, 99th Regional Readiness Command, dated 15December 2003

.Order Number 036105, 99th Regional Readiness Command, 14 April 2004

.Order Number 050160, 99th Regional Readiness Command, dated 7 June 2004

.DD Form 689 (Individual Sick Slip), dated 23 June 2004

.Radiologic Examination Report, dated 17 October 2004

.summary, Medical Evaluation Board, Walter Reed Army Medical Center, dated16 November 2004

.orders 05-125-00031, Headquarters (HQ, 99th Regional Readiness Command,dated 5 May 2005

.DD Form 3349 (Physical Profile), dated 26 May 2005


.letter, dated 1 September 2015

.letter, U.S. Department of Veterans Affairs (VA), dated 21 December 2016

.identification card, VA

.passport, United States of America

.social security card

.identification card, Maryland



FACTS: 

1.The applicant did not file within the three-year period provided in Title 10, UnitedStates Code, section 1552(b); however, the ABCMR conducted a substantive review ofthis case and determined it is in the interest of justice to excuse the applicant's failure totimely file.

2.The applicant states, in effect, she received an injury during her period of serviceand her unit of assignment was the 9th Theatre Support Command (9th TSC).  Shecontends her unit told her that she would be medically separated due to the injury shereceived.  She found out recently when she attempted to apply for a house that she didnot receive a medical discharge. The VA informed her that she received an Honorabledischarge although she has been disabled since her period of service discharge.  Shewas discharged early because of here injury which was service connected and she wasnot aware that this was not listed on her for her discharge.  She believes someone ather unit failed to properly process her separation documents.

3.On 22 January 2001, the applicant enlisted into the United States Army Reserve(USAR) for eight years.

4.A DA Form 2173, dated 23 August 2001, shows a LOD was completed for theapplicant to record an injury (left second metatarsal stress fracture), on 14 May 2001,while on active duty training (ADT).  The LOD details of the accident provides sheexperienced left foot pain while participating in running and marching at FortLeonardwood, MO and a formal LOD investigation was not required.

5.A Fort Jackson Sick Slip, dated 1 August 2001, shows a physical therapist treatedthe applicant and scheduled her for reevaluation on 28 August 2001.  The sick slipshows she would not be healed in time to participate in an Army Physical Fitness Test(APFT) to include walking and she should be deferred until return to her home unit.

6.On 30 August 2001, the applicant received a reevaluation of her foot and atemporary profile (Fort Jackson Sick Slip), which was valid through 1 October 2001.

7.A DD Form 214, dated 31 August 2001, shows the applicant was released from ADTunder the authority of Army Regulation 635-200 (Active Duty Enlisted
Administrative Separations), chapter 4.  She completed 5 months and 4 days of net active service this period. 

.block 9 (Command to Which Transferred) – "HHC 9TH TSC BACKLICK &FARRAR RDS FT BELVOIR VA 22060"

.block 11 (Primary Specialty) – "75H10 PERSONNEL SERVICE SP – 0 YRS – 0MOS//NOTHING FOLLOWS"

.block 24 (Character of Service) – "UNCHARACTERIZED"

.block 28 (Narrative Reason for Separation) – "COMPLETION OF REQUIREDACTIVE SERVICE"



8.The applicant was ordered to annual training (AT) for appointments or physicaltherapy and to report to Walter Reed Army Medical Center in accordance with (IAW):

.Order Number 045518, 99th Regional Support Command, dated 20 May 2002

.Order Number 012887, 99th Regional Support Command, dated 15 December2003

.Order Number 012888, 99th Regional Support Command, dated 15 December2003

.Order Number 036105, 99th Regional Support Command, dated 14 April 2004

.Order Number 050160, 99th Regional Support Command, dated 7 June 2004



9.A DD Form 689, dated 24 June 2004, shows the applicant was directed to continueto follow the established medical profile and use an ace wrap for her swollen ankle.

10.On 17 October 2004, the applicant was examined (Magnetic Resonance Imaging(MRI)) for chronic left ankle strain or pain and swelling to rule out osteochondral injury.

.comparison from 21 May 2002– ankle appeared normal

.impression – no MRI findings of osteochondral injury or ligament disruption



11.A MEB summary (Walter Reed Army Medical Center), dated 16 November 2004,provides:

.she initially had problems with her left foot and ankle in June 2001 whileattending basic training at Fort Leonard Wood, MO

.she was told, after visiting the Troop Medical Clinic, she had a fracture of hersecond metatarsal bone and to follow up at advanced individual training (AIT)

.she received temporary profiles, completed AIT (Fort Jackson, SC), and returnedto her assigned unit

.she took an APFT (Failed) and afterwards had increased foot and ankle pain


.she had significant evaluations over the past several years by various foot andankle specialists

.a bone scan was ordered and she was not recommended for surgery butrecommended for evaluation for a MEB

.Review of Systems– diagnosed with asthma and provided an inhaler (June 2004asthmatic attack during AT) and discomfort in left knee attributed to left ankle

.Physical Examination –



.walks with an antalgic gait due to left foot and ankle symptoms

.lower left extremity appears swollen and walks with a cane

.maximum calf circumference on left is 43 cm compared to 42 cm on right

.ankle circumference measured above malleo 27.5 cm (left) compared to26 cm (right)

.diffusely sore to palpation about left ankle and entire foot– no deformity

.mild bilateral forefoot pronation

.left ankle 5 to 20 degrees plantar flexion compared to right ankle 10 degreesdorsiflexion to 30 degree plantar flexion

.left knee range of motion 0–125 degrees compared to right knee 0–130degrees

.Laboratory/X-Ray(s) – MRI no findings and X-Ray on 5 September 2003 softtissue swelling otherwise normal

.Left foot on 27 June 2003 – shows mild pes planus deformity, otherwisebones, joints and soft tissues are unremarkable (no evidence of fracture ofsecond metatarsal)

.MRI for left foot on 21 May 2002 –  impression: accessory soleus muscle

.Present Condition and Prognosis – left foot pain after standing more than15 minutes, walking over 1 block, or sitting over 15 minutes; no relief fromanti-inflammatory medication with pain level at 9 of 10 and not soughtemployment due to pain levels

.Diagnosis – suffered from chronic left foot and ankle pain which was notacceptable for continued service

.Disposition/Recommendations – given a permanent P3, L3 profile; maximumbenefits of treatment(s); she failed retention standards according toAR 40-501, chapter 3-13D and her case should be referred on to the PhysicalEvaluation Board (PEB) for disposition



12. On 26 May 2005, the applicant was issued a permanent profile, which listedsignificant limitations in item 5 (Functional Activities for Permanent and TemporaryProfile) and an entry in item 10 (Other) which shows "MEB dictated 16 November2004."

13.Orders 05-125-00031, HQ, 99th Regional Readiness Command, dated 5 May2005, shows the applicant received an Honorable discharge, effective dated 5 June2005.

.Component– USAR

.Authority– Army Regulation 135-178 (Enlisted Administrative Separations)

.Format– 500



14.A letter, VA, dated 21 December 2016, shows the applicant entered active duty on27 March 2001 and was released or discharged on 31 August 2001 with an Honorablecharacter of service.  This letter also indicated she was receiving a combined serviceconnected disability evaluation of 70 percent.

15.A review of the applicant's record does not provide evidence showing the applicantreceived a Physical Disability Evaluation System (PDES) or Physical Evaluation Board(PEB) for a medical discharge decision for her foot and ankle injury during her period(s)of military service.

16.On 20 March 2013, an advisory opinion was received the Army Review BoardsAgency (ARBA) Medical Advisor.  The advisory official stated:

a.The applicant had examinations that indicated she suffered from chronic foot andankle pain and she was determined to fail retention standards according to Army Regulation 40-501 (Standards of Fitness), chapter 3-13D.  The documents of record show an MEB physician, who concurred with the findings, evaluated her, and stated that she was unfit for continued service.  The MEB physician recommended that a PEB adjudicate her case for final disposition of a disability.  The applicant is currently receiving disability compensation at 70 percent based on her service-connected disability from her foot and ankle pain.     

b.Based on the available records, the applicant’s case may not have received theproper adjudication.  Although she received an MEB provider and referred to the PEB, there is no indication of the outcome from the PEB or a disability rating.  A reevaluation of her case by the appropriate MEB/PEB is recommended to determine if her case was reviewed and if so what the outcome was.  If not, then full attention should be given to provide an appropriate outcome to the Veteran (applicant).     

17.On 6 May 2020, the applicant was provided a copy of the advisory opinion.  She didrespond to show she acknowledged receipt and that she reviewed the advisory.Additionally, she provides stated that she developed lymphedema due to the leg orankle injury and she has back issues.  She also provides-

a.She suffers from Post-Traumatic Stress Disorder (PTSD) because of militarysexual trauma (MST) in her unit, due to harassment, and she was forced out before she was able to receive a medical board.   

b.She wrote about the encounters or experience during her therapy, however, shejust wants her honorable and medical discharge. 

18.Army Regulation 40-501 (Standards of Fitness), medical fitness standards forenlistment, induction, appointment (including officer procurement programs), retention,and separation (including retirement) provides the following guidance:

a.Once a determination of physical unfitness is made, the PEB rates all disabilitiesusing the VA Schedule for Rating Disabilities (VASRD).  

b.Chapter 7 (Physical Profiling), provides that the basic purpose of the physicalprofile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.   

19.Army Regulation 600-8-4 (Line of Duty (LOD) Policy, Procedures, andInvestigations) states an injury, disease, or death is presumed to be in Line of Duty(ILOD) unless refuted by substantial evidence contained in the investigation.  LODdeterminations must be supported by substantial evidence and by a greater weight ofevidence than supports any different conclusion.

BOARD DISCUSSION: 

1.The Board carefully considered the applicant’s request, supporting documents andevidence in the records.  The Board considered the applicant’s statement, her record ofservice, her release from active duty, the record of her injury and permanent profile, therecommendation for an MEB and her discharge from the USAR.  The Board alsoconsidered the review and conclusions of the medical advising official and concurredwith the advisory recommendation.  Based on a preponderance of evidence, the Boarddetermined that the applicant’s should be afforded continued disability evaluationprocessing.

2.After reviewing the application and all supporting documents, the Board found thatrelief was warranted.


BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

:XXX:XXX:XXXGRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: : : DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

1.The Board determined the evidence presented is sufficient to warrant arecommendation for partial relief.  As a result, the Board recommends that allDepartment of the Army records of the individual concerned be corrected by referringher records to the Office of The Surgeon General for review:

a.If a review by the Office of The Surgeon General determines the evidencesupports a condition or conditions that failed to meet medical retention standards prior to her USAR discharge, the individual concerned will be afforded due process through the Disability Evaluation System.  

b.In the event that a formal PEB becomes necessary, the individual concerned willbe issued invitational travel orders to prepare for and participate in consideration of her case by a formal PEB.  All required reviews and approvals will be made subsequent to completion of the formal PEB.   

c.Should a determination be made that the applicant should be separated or retiredfor disability, these proceedings serve as the authority to issue her the appropriate separation retroactive to her original separation date, with entitlement to all back pay and allowances and/or retired pay.  










2.The Board further determined the evidence presented is insufficient to warrant aportion of the requested relief.  As a result, the Board recommends denial of so much ofthe application that pertains to any relief without benefit of the review described above.



X 

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. 


REFERENCES: 

1.Title 10, United States Code, section 1552(b), provides that applications forcorrection of military records must be filed within 3 years after discovery of the allegederror or injustice.  This provision of law also allows the ABCMR to excuse an applicant'sfailure to timely file within the 3 year statute of limitations if the Army Board forCorrection of Military Records (ABCMR) determines it would be in the interest of justiceto do so.

2.Title 10, United States Code, section 1218(a), Discharge or release from active duty:transition assistance for reserve component members injured while on active duty,states:
a.Provision of Certain Information—Before a member of a reserve componentdescribed in subsection (b) is demobilized or separated from the armed forces, the Secretary of the military department concerned shall provide to the member the following information: 

(1)Information on the availability of care and administrative processing throughcommunity based warrior transition units. 

(2)Information on the location of the community based warrior transition unitlocated nearest to the permanent place of residence of the member. 

b.Covered Members—Subsection (a) applies to members of a reserve componentwho are injured while on active duty in the armed forces. 
 
3. Title 10, USC, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency (PDA), under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 
 
 a.  The objectives of the system are to: 
 
. maintain an effective and fit military organization with maximum use of available manpower 

. provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability 

. provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected 


 
 b.  Soldiers are referred to the PDES when: 
 
. they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board 

. receive a permanent physical profile rating of 3 or 4 and are referred by an MOS/Medical Retention Board 

. are command-referred for a fitness-for-duty medical examination 

. are referred by the Commander, HRC 


 
 c.  The Physical Disability Evaluation System (PDES) assessment process involves two distinct stages:  the medical evaluation board (MEB) and the physical evaluation board (PEB).  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are "separated" receive a one-time severance payment, while veterans who retire based on disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. 
 
 d.  The mere presence of medical impairment does not, in and of itself, justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his/her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 
 
4.  Title 38, USC, sections 1110 and 1131, permits the U.S. Department of Veterans Affairs (VA) to award compensation for disabilities, which were incurred in or aggravated by active military service.  The Army rates conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The VA does not have the authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. 
 
5.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-7, provides the types of administrative discharges/character of service.  The regulations states an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Only the honorable characterization may be awarded a soldier upon completion of his/her period of enlistment or period for which called or ordered to active duty (AD) or active duty training (ADT) or where required under specific reasons for separation, unless an entry-level status separation (uncharacterized) is warranted. (See para 3–9a and chap 11.) 
 a.  Paragraph 3-9 (Uncharacterized separations), provides for entry-level-status a separation will be described as entry-level with service uncharacterized if processing is initiated while a soldier is in entry-level status, except when— The soldier has less than 181 days of continuous active military service, has completed Initial Entry Training, has been awarded an military occupational specialty (MOS), and has reported for duty at a follow-on unit of assignment. 
 
 b.  Paragraph 5-17 (Other designated physical or mental conditions), states commanders who are special court-martial convening authorities may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty.  A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition.  Members may be separated for physical or mental conditions not amounting to disability sufficiently 
severe that the Soldier's ability to effectively perform military duties is significantly impaired. 
 
6.  Army Regulation 135-178 (Enlisted Administrative Separations) sets policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard of the United States and United States Army Reserve (USAR) enlisted Soldiers for a variety of reasons.  Chapter 2 provides guidelines on separation and characterization.   
 
 a.  Paragraph 2–9 (Characterization of service) states an honorable characterization is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. 
 
  (1)  An honorable characterization may only be awarded a Soldier upon completion of his or her service obligation, or where required under specific reasons for separation, unless an uncharacterized description is warranted. 
 
  (2)  When a Soldier is discharged before expiration of the service obligation for a reason for which an honorable characterization is discretionary. 
 
 b.  Paragraph 2-13 (Orders), directs to use the Order Format 500 where discharge is directed in accordance with this regulation, to include expiration of the service obligation and immediate reenlistment. 
 
  (1)  Once a Soldier receives his or her orders, by actual or constructive delivery, such orders may not be revoked except in one or more the following circumstances: 
 
  (2)  The orders are revoked by proper authority, either orally or in writing, prior to the effective date of the discharge.  Orally revoked orders should be documented in writing within 30 days of the revocation. 
 
  (3)  When one or more of the exceptions to the doctrine of administrative finality exist (that is, fraud; mistake of law; mathematical miscalculation; and/or substantial new evidence discovered contemporaneously within a short time following the action). 
 
 c.  After the effective date of discharge, orders may be amended by the separation authority only to correct administrative errors, such as errors concerning grade, Social Security number, or misspelled name. 
 
7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a 
Soldier is unfit because of physical disability to reasonably perform the duties of his/her office, grade, rank, or rating.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. 
 
8.  Army Regulation 40-501 (Standards of Medical Fitness), governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VA Schedule for Rating Disabilities (VASRD).  Chapter 7 (Physical Profiling), provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.   
 
 a.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L- lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.   
 
  (1)  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.   
 
  (2)  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.   
 
  (3)  Numerical designator "4" indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator "4" does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40. 
 
 b.  To make a profile serial more informative, two modifiers are used: "P" (permanent) and "T" (temporary).  The "T" modifier indicates that the condition necessitating a numerical designator "3" or "4" is considered temporary, the correction or treatment of the condition is medically advisable, and correction will usually result in a higher physical capacity.  In no case will individuals in military status carry a "T" modifier for more than 12 months without positive action being taken either to correct the defect or to effect other appropriate disposition. 
 
9.  Army Regulation 600-8-4 (Line of Duty (LOD) Policy, Procedures, and Investigations) states an injury, disease, or death is presumed to be in Line of Duty 
(ILOD) unless refuted by substantial evidence contained in the investigation.  LOD determinations must be supported by substantial evidence and by a greater weight of evidence than supports any different conclusion. 
 
//NOTHING FOLLOWS//