IN THE CASE OF: BOARD DATE: 1 March 2016 DOCKET NUMBER: AR20150008517 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 reconsideration of his request to have his uncharacterized discharge changed to a medical discharge. 2. The applicant states: a. The Board dismissed the magnetic resonance imaging (MRI) results of his back, dated 7 January 2014, and used the x-ray which the doctors stated would not show the damage because X-rays do not show soft tissue damage. The x-ray is useless in his situation. b. The doctors who operated on him referred to his injury as a herniated disc with muscle spasms pinching the sciatic nerve. c. He provides another copy of the page from his MRI report stating the disc was hitting a nerve as well as the surgical report from the doctor who operated on him. This is all the evidence that did not show up on the x-ray. d. He was counselled for not completing mandatory training three times. He was injured and could not do the training for medical reasons. e. He was counseled for failure to live the Soldiers' Creed and Warrior Ethos. The drill sergeants were under the false assumption that all he had was a muscle strain and not a herniated disc. They thought he was being soft when he asked to go home to heal. f. It is also correct that he was counselled for pending entry-level separation. He had requested to go home to heal and was under the impression that the injury would heal in a month and a half. He did not ask for a medical board at the time as he had made the mistake of actually trusting the doctors of Winder Clinic. g. His best choice would have been to ignore his doctor and stay in. At least then they would have been forced to actually look at him and fix him so he could then either continue to serve or be medically boarded. Either way, he probably wouldn't have been stuck with permanent compression damage to his nerve like the doctors say he probably has now because it was left untreated for so long. h. He was x-rayed on 20 April 2012 and everything showed up fine and the doctors told him his injury would heal in a month and a half. He later found out that the damage he had sustained would not show up on an x-ray as they do not show soft tissue damage. Even an x-ray taken after he left the Army showed everything was fine. Later he found out he had disc and nerve damage. An MRI is required to show this damage. i. The Record of Proceedings (ROP) shows he failed numerous Army Physical Fitness Tests (APFTs). He really did not fail the APFTs; he was not physically able to perform the test events. It had nothing to do with motivation, aptitude, self-discipline or any such thing. j. When reconsidering the evidence, please remember everything happened while he was suffering from an injury without him or his Drill Sergeants knowing about the seriousness of his injury. 3. The applicant provides copies of MRI images, dated 7 January 2014; Department of Veterans Affairs (VA) Progress Notes, dated 9 January 2014; and Cape Fear Valley Health System Operative Notes, dated 30 January 2015. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140013149, dated 7 April 2015. 2. As a new argument, the applicant states the Board dismissed the 7 January 2014 MRI results he had submitted. This argument will be considered by the Board. 3. The applicant enlisted in the Regular Army on 5 March 2012 for 3 years and 30 weeks. 4. He was counseled for: * non-completion of mandatory training (three times) * failure to live the Soldiers' Creed and Warrior Ethos, disregard for the Army Value of Respect, and a lack of motivation by displaying emotions of not wanting to be there after being counseled * pending entry-level separation 5. He provided service medical records, dated April 2012, which show he was treated for back pain. 6. On 20 April 2012, an x-ray of his back was taken and showed the following findings: * vertebral body alignment was normal * bodies and disc spaces were intact * no fracture or dislocation was seen * no compression deformity, spondylosis, or spondylolisthesis was noted * sacroiliac joints were normal * mild lower thoracic degenerative changes were noted 7. The x-ray impression was negative for lumbar spine and mild lower thoracic degenerative changes. 8. He was counseled for non-completion of mandatory training on 18, 19, and 25 April 2012. His response to each of the counselling's was that he agreed and he did not provide any remarks in response to the counselling's. 9. His Enlisted Record Brief (ERB), dated 1 May 2012, shows his physical profile rating as 111111. 10. Discharge proceedings were initiated on 4 May 2012. The unit commander cited the applicant's inability to meet the minimum standards for successful completion of training due to lack of aptitude, ability, motivation, and self-discipline; failing numerous APFTs; having character and behavior characteristics that were not compatible with satisfactory continued service; and failing to respond to counseling. On 8 May 2012, the separation authority approved the discharge. 11. On 15 May 2012, he was discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 11, by reason of entry-level performance and conduct. He completed 2 months and 11 days of creditable active service. 12. He provided VA medical records, dated 2013 and 2014, which show he was treated for low back pain. An MRI was conducted in January 2014 and showed the following findings: * no prior radiographs of the lumbosacral spine were available * there were five non-rib-bearing lumbar-type vertebral bodies * no displaced fracture or malalignment was identified * there was mild degenerative disc disease with intervertebral disc space narrowing and small osteophyte formation at T10-T11 and T11-T-12 * vertebral body heights and intervertebral disc spaces were otherwise within normal limits * the bilateral sacroiliac joints appeared normal 13. In April 2014, the Army Discharge Review Board denied his request for a change in his discharge. 14. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 11 provides for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry-level status. This provision applied to individuals who had demonstrated that they were not qualified for retention because they could not adapt socially or emotionally to military life; or because they lacked the aptitude, ability, motivation, or self-discipline for military service; or they had demonstrated characteristics not compatible with satisfactory continued service. The separation policy applied to Soldiers who could not meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline. The regulation required an uncharacterized description of service for separation under this chapter. 15. Army Regulation 40-501 (Standards of Medical Fitness), chapter 7 (Physical Profiling), provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing and if reclassification action is warranted. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): * P – physical capacity or stamina * U – upper extremities * L – lower extremities * H – hearing and ears * E – eyes * S – psychiatric 16. The numerical designator of 1 under all factors indicates an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment. A physical profile rating of 2 under any or all factors indicates an individual possesses some medical condition or physical defect which may require some activity limitations. A rating of 3 or 4 requires evaluation and consideration by a medical evaluation board to determine medical fitness for duty. 17. 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. The unfitness must be of such a degree that a Soldier is unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his or her employment on active duty. Paragraph 3-1 states 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 his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. 18. Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of disability incurred while entitled to basic pay. 19. Title 38, United States 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. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. DISCUSSION AND CONCLUSIONS: 1. The applicant requests reconsideration to change his uncharacterized discharge to a medical discharge. He argues the Board dismissed the VA MRI results he submitted with his initial application. 2. The applicant's new argument has been reviewed. On active duty he was not found to have any medical condition that failed to meet Army retention standards. As he had no profile restrictions, he did not enter into the Army Physical Disability System and therefore he was not considered for a medical separation or retirement. 3. Nearly 2 years post service, the applicant sought treatment from the VA for a service-connected medical condition. He provided a MRI which shows mild degenerative disc disease with the intervertebral disc space narrowing and small osteophyte formations at the T10-T12. Otherwise, the MRI was normal. The mere presence of a potential service-connected impairment 2-years post service does not warrant entry into the Army Physical Disability System. By law, the VA can treat and compensate veterans for service-connected illnesses or injuries. The VA does not determine fitness for duty. 4. During his short period in the service he was counselled for his lack of aptitude, ability, motivation, and self-discipline; failing numerous APFTs; and having character and behavior characteristics that were not compatible with satisfactory continued service. He acknowledged receipt of each counseling and did not rebut or refute the content of the statements. During each session, he did not document he could not perform his duties or participate in the APFT or training because of back problems. He was discharged under the provisions of chapter 11, Army Regulation 635-200 for unsatisfactory performance in an entry level status. There is no error or injustice in the processing of his separation. 5. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief. BOARD VOTE: ________ ________ ________ 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20140013149, dated 7 April 2015. _____________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. ABCMR Record of Proceedings (cont) AR20120001118 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150008517 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1