IN THE CASE OF: 
BOARD DATE: 26 May 2023 
DOCKET NUMBER: AR20220009686
 
APPLICANT REQUESTS: in effect, physical disability separation or retirement. 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
. 
DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in lieu of a DD Form 149 (Application for Correction of Military Record) 

. 
Department of Veterans Affairs (VA) Rating Decision 


FACTS: 
1. 
The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2. 
The applicant states to receive education benefits, a change of his narrative reason for separation is required to show that his injuries are service connected as shown by a hip surgery in late July 2021 and the VA's decision to grant him a 30% disability rating. Now he is receiving only 9 days of credible active service for the total 288 days he served. 

3. 
He provided a VA Rating Decision, dated 11 April 2022, showing he has a combined rating of 30%, effective 17 November 2021, for the following conditions: 

. 
painful scar left hip, 10% 

. 
status post left hip open reduction and internal fixation, 10% 

. 
status post right femoral neck stress fractures right hip, 10% 



4. 
On 1 February 2021, the applicant enlisted in the Regular Army (RA) for 3 years and 32 weeks. There is no evidence that he was awarded a military occupational specialty (MOS). 

5. 
The applicant's record does not contain his complete separation packet nor all the facts and circumstances surrounding the discharge process. However, it does contain: 


a. 
Orders 312-1302, from the U.S. Army Installation Management Command Headquarters United States Army Garrison, Fort Sill, OK, issued on 8 November 2021, showing he was reassigned to the U.S. Army transition point shown for transition processing with a reporting/discharge date of 16 November 2021. 

b. 
DD Form 214 (Certificate of Release or Discharge from Active Duty) showing he was honorably discharged on 16 November 2021. His DD Form 214 also shows: 

. 
Net Active Service this Period – 9 months and 16 days 

. 
Type of Separation – Discharge 

. 
Separation Authority – Army Regulation 635-200 

. 
Separation Code – “JFV” 

. 
Reentry Code – “3” 

. 
Narrative Reason for Separation – “Condition, Not a Disability” 




6. 
AR 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code “JFV” is the appropriate code to assign Soldiers separated under the provisions of AR 635-200, by reason of “Condition, Not a Disability.” 

7. 
The SPD/RE Code Cross Reference Table stipulates the RE code of “3” was to be assigned to members separated with the SPD code of “JFV.” 

8. 
The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 

9. 
Title 38, U.S. Code, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 

10. 
Title 38, Code of Federal Regulations, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. 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. 

11. 
MEDICAL REVIEW: 


a. 
The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents, the Record of Proceedings (ROP), and the applicant's available records in the Interactive Personnel Electronic Records Management System (iPERMS), the Armed Forces Health Longitudinal Technology Application (AHLTA), the Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV). The applicant requests a change in narrative reason for separation and separation code. He contends that he underwent hip surgery in July 2021 and was service connected by the VA at 30%. 

b. 
The applicant’s military record was summarized in the ABCMR ROP. Of note he entered the Regular Army 01Feb2021. He was discharged on 16Nov2021 under provisions of AR 635-200 for a condition, not a disability. 

c. 
The 07Apr2022 VA Rating Decision showed service connection for the following with effective date 17Nov2021: Status Post Left Hip Open Reduction and Internal Fixation at 10%; Status Post Right Femoral Neck Stress Fractures, Right Hip at 10%; and Left Hip, Scar at 0%; Status Post Left Hip Open Reduction and Internal Fixation with Limitation of Abduction, Adduction and Rotation at 0%; and Status Post Left Hip Open Reduction and Internal Fixation with Limitation of Extension at 0%. 

d. Medical records. 
. 
The applicant did not report any hip issues, and none were found during his 22Dec2020 enlistment lower extremity examination. 

. 
On 30Apr2021 the applicant presented to Reynolds AHC Urgent Care with a complaint of right hip pain which started 4 weeks prior after the Forge exercise and had worsened in the last 48 hours. Pain was currently 2/10. The 15May2021 right hip MRI showed mild focal grade 2 bone stress injuries at the medial and lateral margins of the proximal right femoral neck. 

. 
While non weight bearing and on crutches for the right hip since April 30th, he developed pain in the left groin. The 27May2021 left hip MRI showed mild grade 2 bone stress injuries in the medial and lateral margins of the proximal left femoral neck. He was placed in a wheelchair for non weight bearing for both lower extremities for 6 weeks. 

. 
During physical therapy evaluation, the applicant endorsed being physically inactive prior to joining the military, working out/running less than 3 times a week for greater than 2 years. The 15Jun2021 DEXA study showed one of the values were consistent with osteopenia in the left forearm. 

. 
Based on the positive DEXA scan, in accordance with DODI 6130.03, osteopenia, osteoporosis with history of fragility fracture is disqualifying. The initial EPTS paperwork and counseling were completed. His 180 days mark was 31Jul2021. He was advised concerning chapter separation. 

. 
He had already been on calcium and vitamin supplement since May; however, repeat left and right hip MRIs on 06Jul2021 showed bilateral worsening (grade 

III) stress fractures. And he had been pain-free for a few weeks and then developed severe left hip pain (7/10) on 22Jul2021 after getting out of the wheelchair to throw something away. 

. 
Due to failure of conservative therapy, the applicant underwent left hip ORIF (open reduction internal fixation) performed on 29Jul2021 by Southwest Medical Center Orthopedics. 

. 
On 27Aug2021, he was released to return to work, weightbearing with crutches as needed. He completed physical therapy in September. The October left hip MRI showed surgical changes but was otherwise normal. The October right hip MRI showed improved stress fracture. 



d. 
A chapter 5-11 separation would have also been considered since the osteopenia condition was discovered in the first 6 months of service and did not meet procurement standards; however, separation had been delayed due to the applicant’s urgent left hip surgery and concomitant convalescence and rehabilitation. Ultimately, he was recommended for chapter 5-17 separation under provisions of AR 635-200 for a condition not a disability. He had failed multiple treatment modalities and had been unable to meet the rigorous training goals. Referral for medical discharge processing was not warranted. 


BOARD DISCUSSION: 
1. 
After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, a medical advisory opinion, and regulatory guidance were carefully considered. The Board concurred with the advisory official finding based on the positive DEXA scan on 15 June 2021, in accordance with DODI 6130.03, osteopenia, osteoporosis with history of fragility fracture is disqualifying. The Board 

further noted the initial “Existed Prior to Service” (EPTS) paperwork and counseling were completed prior to his 180 days mark, 31 July 2021. The applicant is advised the DD Form 214 shows circumstances as they were on the date prepared. Based upon a preponderance of the evidence, the Board determined there is insufficient evidence that shows a disability separation/retirement was warranted during his period of active service. 

2. 
The Board agreed that the VA provides post-service support and benefits for service connected medical conditions. The VA operates under different laws and regulations than the Department of Defense (DOD). In essence, the VA will compensate for all service connected disabilities. 


BOARD VOTE: 
Mbr 1  Mbr 2  Mbr 3  
:  :  :  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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 
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, 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 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. 

2. 
AR 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code of “JFV” is the appropriate code to assign Soldiers separated under the provisions of AR 635-200, by reason of “Condition, Not a Disability.” 

3. 
The SPD/RE Code Cross Reference Table stipulates the RE code “3” would be assigned to members separated with the SPD code of “JFV.” 

4. 
AR 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the USAR. Table 3-1 includes a list of the RA RE codes: 


a. 
RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army. They are qualified for enlistment if all other criteria are met. 

b. 
RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. They are ineligible unless a waiver is granted. 

c. 
RE-4 applies to persons separated from their last period of service with a nonwaivable disqualification. 


5. Title 10, U.S. Code, 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 is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 
a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with AR 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a Medical Evaluation Board (MEB); when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. 
b. 
The disability evaluation assessment process involves two distinct stages: the MEB and 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 either are 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 upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. 

c. 
The mere presence of a 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 or 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. 


6. 
Title 38 U.S. Code, Section 1110 (General -Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 

7. 
Title 38 U.S. Code, Section 1131 (Peacetime Disability Compensation -Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was 

aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 

8. 
AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System 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 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. Once a determination of physical unfitness is made, all disabilities are rated using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). 


a. 
Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. 

b. 
Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: 


(1) 
The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. 

(2) 
The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 


9. 
AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 

10. 
Title 10, U.S. Code, Section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a 

member who has less than 20 years of service and a disability rating of less than 30 percent. 

11. 
Section 1556 of Title 10, U.S. Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 


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