ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  6 August 2021 DOCKET NUMBER:  AR20200001480 


APPLICANT REQUESTS: a change to the narrative reason for separation 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

•DD Form 293 (Application for the Review of Discharge from the Armed Forces ofthe United States)

•Congressional Correspondence

•Medical Records



FACTS: 

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

2.The applicant states, in 2018 he failed two record Army Physical Fitness Tests(APFT), and after he was allowed the proper rebuttal opportunities it was determinedthat his chapter process was to be suspended for a period of 9 months.  This decisionwas issued to him in February of 2019, but prior to this he had already begun seeingmedical treatment for a prior recorded issue with his knees, shins, and feet.  His firstchief complaint of pain was back in 2014 at his first duty station after returning from
Pohakuloa Training Area (PTA).  Since the chief complaint, he had been in and out ofphysical therapy at both duty stations.  He was put back on profile in November of 2018and remained on profile fairly consistently until August of 2019, when he was finallygiven other treatment methods than physical therapy.

     Throughout the months of August 2019 to October 2019, he saw a variety of doctors including an off-post German podiatrist who recommended hands on treatment that he was never given the chance to follow up on.  In the first week of September 2019, he failed the record APFT that was used to separate him.  He opted involuntarily to take this record APFT, due to pressure from his chain of command, as he was under the belief that he would be wrongfully persecuted by his command if he showed up to work with yet another profile. For months he had been constantly asked daily by a superior if he was off profile, in order to take a new record APFT.  Prior to the week he finally took one, he had frequently been in the emergency room (ER) with a stomach flu.  When he would come back to work and still be sick, he was told that unless he came back with a quarters slip from the ER, he would be written up for malingering.  Due to being on quarters for almost a week straight, his profile lapsed for one week before his next physical therapy appointment winding up in a third failed record APFT.  He was on leave the following week, which was previously approved, with the understanding that he was to immediately clear upon returning.  

     During his leave, he continued to follow up with doctors, which included a visit with his primary care provider who was the first one to give him a possible diagnosis - exercise induced compartmental syndrome.  He was then sent to pain management where it was stated, that a medical retention decision was reached.  His initial P3 was returned, due to lack of exact diagnosis and no follow-up appointments with podiatry.  He was the only person to bring all of these matters up with Baumholder legal and Baumholder TDS, both of whom confirmed his paperwork should not have been 
Processed, and his leadership should have notified legal when handing over his paperwork to be processed.  CPT F---- of Baumholder TDS worked tirelessly to allow for him to receive new medical paperwork as part of his packet, which included getting his commander to reach out to CPT M---- with no success.  All of this led him to believe that he was denied medical rights, due to his chain of command withholding information during his separation. 

3.The applicant provides his congressional correspondence to show he has been
trying to get his issues resolved and a copy of his medical records.

4.A review of the applicant’s service record shows:

a.He enlisted in the Regular Army on 13 August 2013 and reenlisted on 28 April
2016 for a period of 5 years. 

b.He served overseas in Germany from 10 May 2017 until 13 Nov 2019.

c.On 23 October 2018, the applicant was counseled for the purpose of a pending
involuntary separation. 

d.The applicant’s record is void of a complete separation packet.

e.On 26 February 2019, the separating authority directed separation under theprovisions of Army Regulation 635-200, (Active Duty Enlisted – Administrative Separations) Chapter 13-2e, for Unsatisfactory Performance and specifically for APFT Failure.  It was directed that he receives an honorable discharge. 

f.His separation was suspended for 9 months, and on 7 December 2019, he was
discharged under the provisions of AR 635-200, chapter 13-2e, due to unsatisfactory  
performance and he was furnished with an honorable discharge characterization.  His narrative reason for separation was listed as Physical Standards.  His DD Form 214 (Certificate of Release from Active Duty) shows he completed 6 years, 2 months and  
28 days of net active service with no lost time. 

5.A medical advisory will be provided at the Board proceedings.

6.There is no evidence the applicant has applied to the Army Discharge Review Board
for review of his discharge within that board's 15-year statute of limitations.

7.By regulation, AR 635-5 states the DD Form 214 is a summary of the Soldier's most
recent period of continuous active duty.  It provides a brief, clear-cut record of all current
active, prior active, and prior inactive duty service at the time of release from active
duty, retirement, or discharge.  The information entered thereon reflects the conditions
as they existed at the time of separation.

8.By regulation, AR 635-200, chapter 13 states that a Soldier may be separated perthis chapter when it is determined that he/she is unqualified for further military servicebecause of unsatisfactory performance.

9.The Board should consider the applicant’s petition and his service record in
accordance with the published equity, injustice, or clemency determination guidance.

10.MEDICAL REVIEW:

The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, the Army Aeromedical Resource Office (AERO), and the Interactive Personnel Electronic Records Management System (iPERMS).  The ARBA Medical Advisor made the following findings and recommendations:   

a.The applicant is applying to the ABCMR in essence requesting a referral to theDisability Evaluation System (DES).  He states: 

(1)“In 2018, I failed two record APFT and after I was allowed the proper rebuttalopportunities it was determined that my chapter process was to be suspended fora period of 9 months.  This decision was issued to me February 2019 but prior tothis I had already begun seeing medical treatment for a prior recorded issue with my knees, shins, and feet.  



(2)My first chief complaint of pain was back in 2014 at my first duty station afterreturning from Pohakuloa Training Area (PTA).  Since the chief complaint I hadbeen in and out of physical therapy at both duty stations.  I was put back onprofile in November 2018 and remained on profile fairly consistently until August2019 when I was finally given other treatment methods than physical therapy.



(3)Throughout the months of August 2019 - October 2019, I saw a variety of doctorsincluding an off-post German podiatrist who recommended hands on treatmentthat I was never given the chance to follow up on. In the first week of September2019, I failed the record APFT that was used to separate me.



b.The Record of Proceedings details the applicant’s military service and thecircumstances of the case.  The applicant’s DD 214 shows he entered the regular Army on 10 September 2013 and honorably discharged on 7 December 2019 under the provisions of paragraph 13-2e of AR 635-200, Active Duty Enlisted Administrative Separations (19 December 2016). 

c.Paragraph 13-2e of AR 635-200:

“Initiation of separation proceedings is required for Soldiers without medicallimitations who have two consecutive failures of the Army physical fitness test per AR 350–1 or who are eliminated for cause from Noncommissioned Officer Education System courses, unless the responsible commander chooses to impose a bar to re-enlistment per AR 601–280 (RA Soldiers) or AR 140–111 (USAR AGR Soldiers).” 

d.Review of the applicant’s records in AHLTA show numerous visits for theevaluation and treatment of lower extremity pains.  

e.His Army Physical Fitness Test Scorecard (DA Form 705) was not available forreview.  The applicant states the failed APFT which caused his separation in the first week of September 2019.  A physical therapist wrote in her 10 September 2019 follow-up note: “He failed the APFT run on Thursday by 14 seconds due to fatigue in his legs.”  This certainly implies effort on the applicant’s part to meet the standard for the two mile APFT run.  It is unknown why the applicant was not authorized to perform one of the alternative APFT aerobic events (2.5 mile walk, bike, or swim). 
f.The applicant was seen by a provider at the Interdisciplinary Pain ManagementCenter on 3 October 2019 for “approximately one year of progressively increasing lower leg pain that is provoked by exercise and partially relieved by rest.  Has had extensive conservative therapy and physical therapy without success.”  Following the evaluation, the physician diagnosed the applicant with “Bilateral plantar fasciitis; Bilateral shin splints with possible exercise-induced compartment syndrome; Bilateral nondescript anterior knee pain.”  He went on to opine: 

“Given the duration of symptoms, the expected progressive nature of complaints 
in the setting of plantar fasciitis and shin splints, the failure to improve with 
standard of care physical therapy and pharmacologic therapy, and the lack of 
surgical lesion: The patient has reached medical retention decision point. 
Prognosis for retention is poor.  I would expect exacerbation of symptoms with 
standard Army physical training as well as wearing military footwear and IBA {interceptor body armor}.  I recommended medical evaluation board.” 

g.As noted above, paragraph 13-2e of 635-200 contains the phrase “for Soldierswithout medical limitations.”  The pain management specialist noted a long history of lower extremity pains significantly unresponsive to a number of interventions.   

i.Paragraph 1-33a and 1-33b of AR 635-200:

a.Except in separation actions under chapter 10 and as provided in para 1–33b,disposition through medical channels takes precedence over administrativeseparation processing.

{Note: Chapter 10 addresses separations in lieu of courts-martial; and paragraph 1-34b addresses regular Army soldiers will be transferred to the IRR to completetheir statutory or contractual MSO (military service obligation)}.


j.Paragraph 7-1 of AR 40-400, Patient Administration, states in part: “If the Soldierdoes not meet retention standards, an MEB is mandatory and will be initiated by the physical evaluation board liaison officer (PEBLO).”  Note there is no mention of component or duty status. 

k.Finally, paragraph 13-5d of AR 635-200:

“When appropriate, forward the case recommending that the Soldier beprocessed through medical channels. This is required when UCMJ action is not initiated and when the Soldier has an incapacitating physical or mental illness that was the direct or substantial contributing cause of the conduct for which separation action is being considered.” 

l.It is the opinion of the Agency Medical Advisor that a referral of this case to theDisability Evaluation System is clearly warranted.  


BOARD DISCUSSION: 

After review of the application and all evidence, the Board found some relief is warranted.  The applicant’s contentions, medical concerns, and the medical advisory opinion were carefully considered.  Based upon the preponderance of the evidence, the Board agreed the applicant’s record should be referred to the Office of the Surgeon General for medical evaluation consideration, with all relief dependent upon a final medical determination. 

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

:XX :XX :XX GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: : : DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

1.The Board determined that the evidence presented was 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 referringhis records to The Office of the Surgeon General for review to determine if he shouldhave been discharged or retired by reason of physical disability under the IntegratedDisability Evaluation System (IDES).

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

b.Should a determination be made that the applicant should have been separatedunder the IDES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received.  

2.The Board further determined that 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 changing his reason for discharge without evaluation underthe IDES.


Microsoft Office Signature Line...

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.Army Regulation 635-5 (Separation Documents) states the DD Form 214 is asummary of the Soldier's most recent period of continuous active duty.  It provides abrief, clear-cut record of all current active, prior active, and prior inactive duty service atthe time of release from active duty, retirement, or discharge.  The information enteredthereon reflects the conditions as they existed at the time of separation.

3.Army Regulation 635-200 (Active Duty Enlisted – Administrative Separations), in effectat the time, sets forth the basic authority for the separation of enlisted personnel.

a.Paragraph 3-7a (Honorable) provided that an honorable discharge is a separationwith 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. 

b.Paragraph 3-7b (General) provides that a general discharge is a separation fromthe Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 

c.Paragraph 13 (Separation for Unsatisfactory Performance) states that a Soldiermay be separated per this chapter when it is determined that he/she is unqualified for further military service because of unsatisfactory performance. 

d.Paragraph 13-2e states initiation of separation proceedings is required forSoldiers without medical limitations who have two consecutive failures of the Army physical fitness test per AR 350–1 or who are eliminated for cause from Noncommissioned Officer Education System courses, unless the responsible commander chooses to impose a bar to re-enlistment per AR 601–280 
(RA Soldiers) or AR 140–111 (USAR AGR Soldiers). 

4.On 25 July 2018, the Under Secretary of Defense for Personnel and Readinessissued guidance to Military Discharge Review Boards and Boards for Correction ofMilitary/Naval Records (BCM/NRs) regarding equity, injustice, or clemencydeterminations.  Clemency generally refers to relief specifically granted from a criminal sentence.  BCM/NRs may grant clemency regardless of the type of court-martial.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment.  Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 
 
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