DEPARTMENT OF THE ARMY ARMY REVIEW BOARDS AGENCY 251 18TH STREET SOUTH, SUITE 385 ARLINGTON, VA 22202-3531 SAMR-RB 4 November 2016 MEMORANDUM FOR Office of the Surgeon General, ATTN: DASG-HSZ-PAD, 7700 Arlington Blvd., Suite 3SW328B, Falls Church, VA 22042 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for AR20150009475 1. Reference the attached Army Board for Correction of Military Records of Proceedings, dated 13 September 2016, in which the Board members unanimously recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant partial relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that the applicant's case be referred to the Office of the Surgeon General for consideration by a Non-Duty PEB to review whether or not he was medically fit for duty at the time of his discharge from the U.S. Army Reserve (USAR). a. If the PEB determines he was fit for duty at the time of his discharge from the USAR, his under other than honorable conditions discharge will stand as ordered without a change in his character of service. b. If the PEB determines he was not fit for duty at the time of his discharge from the USAR, his discharge will be upgraded to an honorable discharge by reason of not meeting medical retention standards. Should this occur, his conditions will be considered non­ compensable. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 04 March 2017. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: ti.LU------- Encl Deputy Assistant Secretary of the Army (Review Boards) BOARD DATE: 18 October 2016 DOCKET NUMBER: AR20150009475 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: 18 October 2016 DOCKET NUMBER: AR20150009475 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. BOARD DATE: 18 October 2016 DOCKET NUMBER: AR20150009475 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 an upgrade of his discharge from the U.S. Army Reserve (USAR), from an under other than honorable conditions (UOTHC) discharge to an under honorable conditions (general) discharge (GD). 2. The applicant states: * he suffered a severe foot injury (Lisfranc dislocation/rupture/fracture) in April of 2010, which has required 3 major surgeries since * he currently has 2 permanent plates and 12 surgical screws in his foot * he has not gained mobility back in his foot in the 5 years since his initial injury; he wears custom orthotics to prevent further issues * he provided his chain of command with extensive medical documentation on multiple occasions * he requested appointments with military physicians to determine if he was fit for duty; he was told he was on the list and would be told when an appointment was scheduled, but was never contacted * his unsatisfactory discharge was returned with no action due to the medical documentation he provided about his injury * he provided his unit his future military service plans, his surgical operative plans from his civilian physician, and all requested documentation * his command never provided any guidance after that and his attempts by phone calls, emails, and mail went unanswered * he was only notified of his discharge after it had taken place and was never asked to provide any further documentation of his situation; he was never provided an appointment with a military physician * he has earned advanced educational degrees and certifications since his foot injury * since departing the Army, he has continued to help Soldiers and even in his current civilian position has hired former Soldiers 3. The applicant provides a letter to the National Personnel Records Center (NPRC), St. Louis, MO, dated 15 November 2014, which serves as a cover letter to his request for copies of certain documents from his military records. Included as enclosures to this letter were: * his DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 11 February 2008 and allied enlistment documents * DD Forms 93 (Record of Emergency Data), dated 11 September 2008 and 15 January 2009 * Orders 8120003, issued by the Military Entrance Processing Station (MEPS), Dallas, TX, dated 29 April 2008 * Orders 169-356, issued by Headquarters, U.S. Army Basic Combat Training Center of Excellence, Fort Jackson, SC on 17 June 2008 * Orders 08-258-03268, issued by Headquarters, Army Reserve Medical Command, Pinellas Park, FL on 14 September 2008 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 1 June 2009 * DA Form 4856 (Developmental Counseling Form), dated 7 June 2009 * a memorandum issued by 354th Medical Logistics Company, Seagoville, TX on 4 August 2009 * Sheppard Air Force Base Medical Out-Processing Guide, one-page instruction excerpt, undated * seventeen pages of medical documents from the applicant's civilian medical provider * six emails between the applicant and his chain of command, dated from 31 May 2010 to 19 February 2013 * separation proceedings documentation, dated 23 May 2012 * a self-authored letter from the applicant to the 807th Medical Command, Fort Douglas, UT, dated 5 February 2013 * Orders 13-249-00032, issued by Headquarters, 88th Regional Support Command (RSC), Fort McCoy, WI on 6 September 2013 * degree certificates and school transcripts * five other pages of miscellaneous documents 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 USAR on 11 February 2008. He was ordered to active duty and completed his initial entry training on 1 June 2009, for which he was awarded military occupational specialty (MOS) 68A (Biomedical Equipment Specialist). Upon his release from active duty he was returned to the 354th Medical Logistics Company, Seagoville, TX, a troop program unit (TPU) of the USAR. 3. On or about 26 April 2010, the applicant injured his left Lisfranc's joint and was diagnosed with hallux abducto valgus with bunion deformity. He underwent surgery initially on 6 May 2010. 4. On 23 May 2012, the applicant's unit commander informed him, by memorandum, that he was initiating action to separate him from the USAR under the provisions of Army Regulation 135-178 (Enlisted Administrative Separations), chapter 13. The commander stated the reason for his proposed action was the applicant's unsatisfactory participation as prescribed by Army Regulation 135-91 (Army National Guard (ARNG) and USAR Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), in that he failed to attend a total of 28 drills as of 5-6 May 2012. He afforded the applicant an opportunity to: * consult with counsel * appear and present his case before an administrative separation board * be represented at any hearing by appointed counsel for representation, military counsel of his own choice, if reasonably available, or civil counsel at his own expense * submit statements in his own behalf * waive the above rights in writing * withdraw his waiver of rights above any time before the date the separation authority ordered, directed, or approved his separation 5. The commander further advised the applicant the final decision as to whether he would be separated (and if so, whether completely discharged or transferred to the Individual Ready Reserve (IRR)) and the character of his service would rest with the separation authority. The commander also recommended the applicant receive an under honorable conditions (general) discharge. 6. On 23 May 2012, the applicant acknowledged the receipt of the notification of separation under the provisions Army Regulation 135-178, chapter 13, for unsatisfactory participation and acknowledged that he may encounter substantial prejudice in civilian life if his service was characterized as under honorable conditions (general) or under other than honorable conditions. He further confirmed by his initials that: * he waived his right to consult with counsel * he requested copies of the documents * he waived his right to a counsel for representation at a board hearing (he did not initial his intent for a board hearing or the waiving of a board hearing) * statements on his own behalf would be submitted 7. On the same date, he submitted a request for a conditional waiver wherein he voluntarily waived his right to a hearing before an administrative separation board on the condition that upon separation his service would be characterized as under honorable conditions (general). He again waived his right to counsel and he indicated he would submit a statement in his own behalf. 8. His statement summarized his honorable service and, through no fault of his own, his injury that led to the situation he was in. He further requested that his separation be characterized as one due to medical reasons, as that was the true cause for his situation. 9. Orders 13-249-00032, issued by Headquarters, 88th Regional Support Command, Fort McCoy, WI, on 6 September 2013, discharged him from the USAR effective 13 September 2013, in the lowest enlisted grade, with a UOTHC characterization of service. 10. In the processing of this case, an advisory opinion was obtained on 4 May 2016 from the Senior Medical Evaluation Board (MEB) Physician, MEB Section, Martin Army Community Hospital, Fort Benning, GA. This official opined: a. A review of the records shows the service member was in the USAR from 11 February 2008 and served on active duty from 29 April 2008 to 1 June 2009. Apparently, he was drilling with his unit and serving honorably prior to 26 April 2010. b. The record then reflects that he sustained a significant traumatic injury to his left foot and was seen by Podiatry, a Dr. D.B., DPM, beginning 26 April 2010. He was diagnosed with a traumatic dislocation of his left Lisfranc's joint and hallux abducto valgus with bunion deformity. He underwent surgery initially on 6 May 2016 [sic - 6 May 2010]. c. Over the next 2-3 years, the service member has undergone additional surgeries, 3 major surgeries and now has 2 permanent plates, 12 surgical screws and has required arthrodesis and fusion of the joints of the foot. He continues with chronic pain and neuritic pain requiring injection therapy and pain management. d. Clearly, the medical documentation supports that the service member had a non-duty-related injury that caused him to be unable to perform his required military duties and drilling and he was unable to attend drills, perform training or execute active duty for training orders. e. The record further reflects that the Reserve unit did not complete the appropriate medical paperwork or profiles to reflect this injury and did not proceed with the appropriate non-duty MEB [i.e., Physical Evaluation Board (PEB)] disposition that would have resulted in medical separation for a non-duty related injury and physical limitations. f. Instead, the service member was processed for unsatisfactory drill participation and issued a discharge under other than honorable conditions. g. Conclusion: The documentation submitted would support that the service member sustained a non-duty-related injury to his left foot on or about 26 April 2010, which caused the service member to be unable to participate and perform his required drills and USAR duties. The service member required multiple surgeries and ongoing treatment since that time. He was separated for unsatisfactory participation in spite of his submission of medical documentation to his unit. h. Therefore, it would appear that the proper course of action would have been for the unit to prepare a DA Form 3349 (Physical Profile), which documented his medical condition and limitations, which would then require a non-duty PEB. 11. The advisory opinion was provided to the applicant on or about 8 August 2016, for informational purposes and to afford him the opportunity to provide rebuttal comments; however, he did not respond. 12. The applicant provides the following that has not been already discussed: a. Seventeen-pages of medical documents from his civilian medical provider, dated between 6 May 2010 and 24 April 2012. These medical documents detail his initial visit to his physician on 26 April 2010 and his traumatic dislocation of his left Lisfranc's joint and hallux abducto valgus with bunion deformity. It also details his surgical procedures that occurred on 6 May 2010 to correct these issues and follow up visit notes. It further stated a broken screw was identified and the need for another surgery; however, no date was given. b. Electronic email correspondence to his chain of command, dated between May 2010 and February 2013, which provided his unit an update on his foot surgery and the need to fill out an authorization for rescheduled training (RST) since he was very limited in his mobility to perform his duties. c. An email, dated 1 February 2012, from his unit indicating that due to the documentation he provided, his unit's higher headquarters returned his previous commander's recommendation to discharge him as an unsatisfactory participant without action. It further noted that he needed to discuss his plans with the new commander and attend the next battle assembly training. d. A letter to his commander, dated 8 May 2012, which provided an update on his medical assessment and operative plan. He stated that after two surgeries he still had significant joint instability, pain, and degenerative joint disease in his foot. An additional surgery would be performed near the end of 2012 or early 2013 to permanently stabilize the foot. He also requested an appointment with the medical board of examiners. e. His educational degree certificates and school transcripts, an incomplete letter from his unit commander addressing unexcused absences, and mail return receipts and a sales receipt dated from June 2012 to March 2013. REFERENCES: 1. Army Regulation 135-91 provides that a Soldier is an unsatisfactory participant when he or she attains 9 or more unexcused absences from scheduled inactive duty training during a 1-year period. Unless an absence is authorized, a Soldier failing to attend a scheduled drill will be charged with an unexcused absence. When absence involves a Multiple Unit Training Assembly (MUTA), or any portion of a MUTA, the charge will be one unexcused absence for each 4-hour period not attended, but not to exceed four unexcused absences. Unexcused absences remain charged to the Soldier on reassignment or reenlistment in another Reserve Component unit. 2. Army Regulation 135-178 sets forth the basic authority for the separation of enlisted ARNG and USAR personnel. a. Paragraph 2-9a provides that an honorable characterization of service 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. b. Paragraph 2-9b provides that a general (under honorable conditions) characterization of service is warranted when significant negative aspects of the Soldier's conduct or performance of duty outweigh positive aspects of the Soldier's military record. c. Paragraph 2-9c provides that service may be characterized as under other than honorable conditions when discharge is for misconduct, fraudulent entry, unsatisfactory participation, or security reasons. 3. Army Regulation 600-8-19 (Enlisted Promotions and Reductions), then in effect, sets forth the basic authority and reasons for the promotion and reduction of enlisted ARNG and USAR personnel. a. Paragraph 10-15 stated when the separation authority determines a Soldier is to be discharged from the service under other than honorable conditions, the Soldier will be reduced to the lowest enlisted grade. b. Paragraph 10-17 stated reductions for unsatisfactory participation are discretionary and wholly apart from discharge proceedings under Army Regulation 135-178, chapter 13. 4. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability incurred while entitled to basic pay. It states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. Under the laws governing the Physical Disability Evaluation System (PDES), Soldiers who sustain or aggravate physically-unfitting disabilities must meet several line-of-duty criteria to be eligible to receive retirement and severance pay benefits. The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training. 5. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for retention and separation, including retirement. a. Paragraph 3-3 (Disposition) provides that U.S. Army Reserve Soldiers not on active duty whose medical condition was not incurred or aggravated during an active duty period will be processed in accordance with chapter 9. b. Paragraph 7-11 (Preparation, Approval, and Disposition of DA Form 3349) states that code designations (defined in table 7-2) are limited to permanent profiles for administrative use only and are to be completed by the profiling officer. Per table 7-2, code descriptions are as follows: (1) Code E: No continuous consumption of combat rations. (2) Code W: MMRB. This Soldier has a permanent profile rating of 3 or 4 who has been evaluated by a MMRB with a recommendation to retain or reclassify and return to duty. (3) Code Y: Fit for Duty. This Soldier has been determined to be fit for duty (not entitled to separation or retirement because of physical disability) after complete processing under Army Regulation 635-40. c. Paragraph 9-12 (Request for PEB Evaluation) states Reserve Component (RC) Soldiers with non-duty-related medical conditions who are pending separation for failing to meet the medical retention standards are eligible to request referral to a PEB for a determination of fitness. Because these are cases of RC Soldiers with non-duty-related medical conditions, medical evaluation boards are not required and cases are not sent through the PEB Liaison Officers at the medical treatment facilities. Once a Soldier requests in writing that his or her case be reviewed by a PEB for a fitness determination, the case will be forwarded to the PEB by the RSC or the U.S. Army Human Resources Command Surgeon's Office and will include the results of a medical evaluation that provides a clear description of the medical condition(s) that cause the Soldier to not meet medical retention standards. DISCUSSION: 1. The applicant was serving as a member of a USAR TPU; however, it appears he accumulated some number of unexcused absences prior to his initial foot injury on or about 26 April 2010. 2. On or about 26 April 2010, he injured his left foot; specifically, his Lisfranc's joint, and he was diagnosed with hallux abducto valgus with bunion deformity. He underwent surgery on 6 May 2010, which limited his ability to attend unit training assemblies. It is unclear to what extend he communicated his medical situation with his chain of command in the months that followed. 3. It appears his chain of command took action to separate him as an unsatisfactory participant; however, the unit's higher headquarters returned his discharge packet based on the correspondence (presumed to be medical documentation related to his injury) he provided his chain of command. His unit commander then required that he establish a work plan and attend future battle assemblies. 4. He was again recommended for discharge on 23 May 2012, by reason of unsatisfactory participation. He acknowledged his notification of separation proceedings and submitted a conditional waiver request for a GD, of which the separation authority could accept or reject. 5. It does not appear his medical condition was given consideration during his separation processing. He was subsequently discharged from the USAR on 13 September 2013 as an unsatisfactory participant, and his service was characterized as UOTHC. 6. He provides evidence that shows he sought assistance in obtaining an appointment with military medical personnel to determine his fitness for duty. However, it does not appear his efforts resulted in any such medical action being taken. 7. The applicant should have been given a profile for his injury and referred to an NDR-PEB to determine whether or not he was medically fit for duty subsequent to his discharge from the USAR. This did not occur; therefore, as a matter of fairness and equity, and as recommended in the medical advisory opinion, he should be referred at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009475 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009475 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2