BOARD DATE: 12 September 2017 DOCKET NUMBER: AR20160002607 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: 12 September 2017 DOCKET NUMBER: AR20160002607 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: 12 September 2017 DOCKET NUMBER: AR20160002607 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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his service was characterized as honorable versus uncharacterized. 2. The applicant states all other records state his service was honorable and he was granted 20 percent service-connected disability. He contends he served honorably. 3. The applicant provides: * DD Form 214 for the period ending 14 September 2005 * Department of Veterans Affairs (VA) decision letters, dated 2 July 2010 * VA statement of service letter, dated 10 May 2012 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. A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows the applicant served in the Illinois Army National Guard from 1 April 2004 to 2 March 2005. His service for this period was uncharacterized. 3. The applicant enlisted in the Regular Army on 3 March 2005. 4. The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. However, the DD Form 214 he was issued shows he was discharged on 14 September 2005, under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-11, by reason of failing medical/physical procurement standards. His DD Form 214 shows he completed 6 months and 12 days of active service and his service was uncharacterized. 5. In support of his request, the applicant provides: a. Two VA decision letters, dated 2 July 2010, which show he was rated 20 percent for a service-connected disability. b. A VA statement of service letter, dated 10 May 2012, which states the applicant served in the Army from 3 March 2005 to 14 September 2005, and according to VA records, his service was characterized as honorable. 6. In the processing of this case, an advisory opinion was obtained from the Army Review Boards Agency Medical Advisor on 5 December 2016, wherein he stated: a. A review of the applicant's medical record revealed clinical encounters between March and October 2005. (1) A pulmonary evaluation on 29 March 2005 for difficulty breathing (dyspnea) with negative methacholine challenge test. (2) A podiatry evaluation on 29 June 2005 after several visits to the troop medical clinic for shin splint, flat feet/congenital foot deformity – pes planus, and orthopedic evaluation initially on 26 July 2005. Intermittent bilateral foot pain since age 16. Attempted to run track and was not given permission slip by physician. Significant increase in pain since service entry. Was able to pass physical training (PT) test with severe foot pain for several days afterward. Since arrival at Fort Bliss on 14 May 2005 has been on profile, used shoe inserts, and medications; placed in a controlled ankle movement (CAM) walker for two weeks, for right foot arch pain/stress reaction. (3) Evaluated by Gastroenterology for on and off bright red blood per rectum for 3 months, since May 2005 (history of hemorrhoids) with unremarkable colonoscopy (11 August 2005) with clinic last follow-up on 24 August 2005. (4) A bone scan on 13 June 2005, showed abnormal study consistent with a stress fracture in the left foot and shin splints (bilateral tibiae). Right foot x-ray series on 22 June 2005, normal. Chest x-ray on 28 July 2005, normal. (5) Medical evaluation board (MEB) physicals on 28 July and 4 August 2005. b. Limited review of VA records through the Joint Legacy Viewer with 14 listed problems (four were VA entered including flatfoot (2011), environmental allergies (2012), acquired flexible flat foot (2014), and gastroesophageal reflux (2014)). c. The applicant did not meet medical accession standards for bilateral foot pain/pes planus (flatfoot) (existed prior to service) in accordance with Chapter 2, Army Regulation 40-501 (Standards of Medical Fitness), and following the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. d. The applicant's medical conditions were duly considered during medical separation processing. 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 the discharge in this case. 7. The applicant was provided a copy of the advisory opinion on 6 December 2016, for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond. REFERENCES: 1. Army Regulation 635-200 sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Chapter 3 provides that a separation will be described as entry level with uncharacterized service if the Soldier has less than 180 days of continuous active duty service at the time separation action is initiated. b. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member'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. c. Paragraph 3-9, in effect at the time of the applicant's separation, provided that a separation would be described as entry level with uncharacterized service if processing was initiated while a Soldier was in an entry-level status, except when: (1) a discharge under other than honorable conditions was authorized, due to the reason for separation and was warranted by the circumstances of the case; or (2) the Secretary of the Army, on a case-by-case basis, determined a characterization of service as honorable was clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. This characterization was authorized when the Soldier was separated by reason of selected changes in service obligation, for convenience of the government, and under Secretarial plenary authority. d. Paragraph 5-11 provided that Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment or who became medically disqualified under these standards prior to entrance on active duty, active duty for training, or initial entry training would be separated. Medical proceeding, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within 6 months of the Soldier's initial entrance on active duty, that the condition would have permanently or temporarily disqualified the Soldier for entry into military service had it been detected at that time, and the medical condition did not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501. d. The character of service for Soldiers separated under this provision would normally be honorable, but would be uncharacterized if the Soldier was in an entry-level status. An uncharacterized discharge is neither favorable nor unfavorable; in the case of Soldiers issued this characterization of service, an insufficient amount of time would have passed to evaluate the Soldier's conduct and performance. 2. Army Regulation 635-40 establishes the Army 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 office, grade, rank, or rating. Paragraph 3-1 provides that 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating. The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated. 3. Title 38, U.S. Code, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. DISCUSSION: 1. The applicant requests correction of his DD Form 214 to show his service was characterized as honorable. He contends all of his other records state his service was honorable and he has a service-connected disability. 2. The medical advisory opinion states the applicant did not meet medical accession standards for bilateral foot pain/pes planus (flatfoot), which existed prior to service. The extreme conditions of physical fitness training caused a significant increase in pain since service entry. 3. Although the applicant's records do not contain a discharge packet, it is presumed that his discharge process was accomplished in accordance with applicable regulations. 4. Soldiers are considered to be in an entry-level status when they are within their first 180 days of active duty service. The evidence of record shows the applicant was in an entry-level status at the time of his initiation for separation processing. As a result, his service was appropriately described as "uncharacterized" in accordance with governing regulations. It appears all requirements of law and regulation were met throughout the separation process. 5. An honorable discharge may be granted only in cases that are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty. There are no such circumstances present in his records. 6. An uncharacterized discharge is not meant to be a negative reflection of a Soldier's military service. It merely means the Soldier has not served on active duty long enough for the character of service to be rated. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002607 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002607 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2