BOARD DATE: 5 September 2017 DOCKET NUMBER: AR20160001088 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: 5 September 2017 DOCKET NUMBER: AR20160001088 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: 5 September 2017 DOCKET NUMBER: AR20160001088 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 amendment of her uncharacterized discharge for entry-level performance and conduct to an honorable discharge due to medical reasons. 2. The applicant states she was hurt while in the service and she has no veterans' benefits. 3. The applicant provides: * Emergency Care and Treatment Record/Discharge Instructions, dated 19 October 2002 * three character-reference letters * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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's DD Form 2808 (Report of Medical Examination), dated 23 July 2002, shows she was found fit for enlistment and she had no reported medical conditions. 3. On 15 August 2002, she enlisted in the Regular Army. 4. She provided Emergency Care and Treatment Record/Discharge Instructions, dated 19 October 2002, which show, in part: a.  She had a positive family history of rheumatoid arthritis. b.  She had a history of lower extremity stress fractures according to her bone scan. She continued with arthralgia (joint pain) in multiple sites. c.  She verbalized a desire to be discharged from the military because she knew she could not physically meet and complete the physical requirements. d.  The treatment she received was rendered on an emergency basis. This treatment was not a substitute for complete or continuing medical care. She may have been released before all of her medical problems were apparent, diagnosed, and/or treated. She was advised to seek medical care or return to the Wilford Hall Emergency Department or nearest emergency center if her condition worsened. 5. Her Enlisted Record Brief, dated 5 November 2002, shows she had no physical limitations and her levels of functional capacity ratings in six factors (PULHES) as – * P – physical capacity or stamina – 1 * U – upper extremities – 1 * L – lower extremities – 1 * H – hearing and ears – 1 * E – eyes – 1 * S – psychiatric – 1 6. On 15 November 2002, she was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11. Her DD Form 214 shows she completed 3 months and 1 day of creditable active military service and the following entries: * item 24 (Character of Service) – Uncharacterized * item 28 (Narrative Reason for Separation) – Entry-Level Performance and Conduct 7. She provided three character-reference letters as follows: a.  A letter from M____ L____ R____, dated 11 November 2015, states the applicant is like a sister to her and she would recommend her for any task that required problem solving and a high level of commitment. b.  A letter from H____ F____, dated 13 November 2015, states he has been friends with the applicant for 6 years. During this period she has been a loyal, honest, humble, and hard-working person. c.  A letter from R____ E____, dated 3 December 2015, states she has known the applicant for 7 years. She is giving, kind, and open-hearted. 8. On 18 October 2016, the applicant was asked to provide a copy of her military medical records and any other medical records to support her application. She was advised that her case would be held for 90 days until 18 January 2017 to provide the requested information. 9. On 16 March 2017, the Senior Medical Advisor for the Army Review Boards Agency provided an advisory opinion in which he stated the applicant's medical conditions were duly considered during her medical separation processing and a review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for her discharge. The applicant met medical retention standards for stress fractures of the lower extremities in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. She did not reach the medical retention decision point prior to her separation from military service. He further stated: a.  A review of the applicant's electronic medical records revealed no clinical encounters and no clinical notes. b.  A whole-body nuclear medicine bone scan, dated 30 September 2002, showed a 1 month history of pain in bilateral feet. Impression: (1) multiple areas of stress fracture on bilateral tibias (consistent with a grade 2 stress fracture of left mid-tibial plateau, consistent with grade 1 stress fracture at the mid-right tibia in two locations); (2) grade 1 stress fracture of the first metatarsal base of the left foot; and (3) stress changes at the left mid-tibia. 10. On 22 March 2017, a copy of the advisory opinion was provided to the applicant for review and for an opportunity to provide a response. 11. On 15 May 2017, the law office of K____ S. B____, Medford, NY, advised the ABCMR the applicant had retained his firm to represent her and requested a 90-day extension to further investigate her claim and to provide a response to the findings in the medical advisory opinion. 12. The ABCMR has not received any additional correspondence from the applicant's counsel. 13. Her records are void of, and both she and counsel failed to provide any evidence showing she was found unfit or that she had injuries warranting processing through the Army Physical Disability Evaluation System. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 11 establishes policy and prescribes procedures for separating personnel for entry-level status performance and conduct. Paragraph 11-3 (Separation Policy) applies to Soldiers enlisted in the Regular Army, Army National Guard, and U.S. Army Reserve. a.  Paragraph 11-3(a) states Soldiers who cannot or will not adapt socially or emotionally to military life demonstrate they are not qualified for retention. b.  Paragraph 11-3(b) states Soldiers who cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline demonstrate they are not qualified for retention. c.  Paragraph 11-8 states service will be characterized as entry level – uncharacterized – under the provisions of this chapter. d. For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break of more than 92 days of active military service. 2. 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). Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) provides the standards for medical fitness for retention and separation, including retirement. Soldiers with medical conditions listed in this chapter are referred for disability processing. 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical 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 or her office, grade, rank, or rating. a.  The mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability. b.  The medical treatment facility commander with primary care responsibility evaluates those referred to him or her and, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refers the member to a medical evaluation board. Those members who do not meet medical retention standards are referred to a physical evaluation board for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition. 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. 4. 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 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. The applicant requests amendment of her uncharacterized discharge for entry-level performance and conduct to honorable due to medical reasons. She contends she was hurt while in the service and she has no veterans' benefits. 2. The applicant was asked to provide medical evidence supporting her application and her counsel indicated a response would be provided. However, no response was received. 3. Her available records are void of, and both she and counsel failed to provide any evidence showing she was found unfit or that she sustained injuries warranting processing through the Army Physical Disability Evaluation System. 4. Every case is individually decided based upon its merits. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust. The applicant and her counsel failed to submit evidence that would satisfy this requirement. 5. Granting veterans' benefits is not within the purview of the ABCMR. Any questions regarding eligibility for veterans' benefits should be addressed to the Department of Veterans Affairs. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001088 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001088 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2