IN THE CASE OF: BOARD DATE: 16 June 2016 DOCKET NUMBER: AR20150010175 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 IN THE CASE OF: BOARD DATE: 16 June 2016 DOCKET NUMBER: AR20150010175 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. IN THE CASE OF: BOARD DATE: 16 June 2016 DOCKET NUMBER: AR20150010175 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) by changing the character of service from uncharacterized to honorable. 2. The applicant states, in effect: * he got the boot from the Army because of his back (he had scoliosis - curvature of the spine); because of this medical condition, he was unable to do push-ups * after failing the push-up part of the Army Physical Readiness Test (APRT), he was sent for evaluation to Walter Reed Hospital [sic, Walson Army Hospital] at Fort Dix, NJ * he was told by the doctors there he had a curvature of the spine; after this he was separated * while still in the Army, he earned two marksmanship badges and one streamer * he has enclosed copies of his scorecards to prove his claims; he was trying to serve his country * without the upgrade he will be unable to qualify for medical care with the Department of Veterans Affairs (VA) 3. The applicant provides: * two copies of his DD Form 214 for the period ending 17 January 1986 * Orders Number 016-71, dated 16 January 1986 * three DA Forms 705 (APRT Scorecard), dated 30 October 1985, 11 December 1985, and 17 December 1985, respectively * three DA Forms 87 (Certificate of Training), dated 1 November 1985, 6 November 1985, and 19 December 1985, respectively * Hand Grenade Qualification Scorecard, dated 26 October 1985 * Record Fire Scorecard, dated 30 October 1985 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 Regular Army on 30 August 1985. He was sent to Fort Dix, NJ for initial training. He completed basic combat training (BCT) on 1 November 1985, and was reassigned to complete advanced individual training (AIT) for military occupational specialty 64C (Motor Transport Specialist). 3. On 4 December 1985, the applicant's drill sergeant administered a DA Form 4856-R (General Counseling Form) because he had failed to meet minimal standards for the APRT. The applicant acknowledged the counseling. 4. On 11 December 1985, the applicant's drill sergeant administered another DA Form 4856-R for failing the final APRT. The counseling statement also noted the applicant's lack of motivation and advised him he was being considered for separation. The applicant acknowledged the counseling. 5. On 11 December 1985, his first sergeant and commander also counseled him in writing regarding his APRT failure. The commander indicated he would recommend the applicant for separation because of his lack of motivation and his attitude. The applicant acknowledged the counseling. 6. His available service record contains a DD Form 689 (Individual Sick Slip), dated 20 December 1985, showing he was sent for a scoliosis evaluation. The medical officer's section of the form showed a physician's assistant directed the applicant to return to duty. The document does not reflect the specific result of the medical evaluation. 7. His service record also contains a DA Form 3982 (Medical and Dental Appointment) indicating the applicant was to go to the Orthopedic Clinic on 23 December 1985. The form does not show the result of this appointment. 8. An undated DA Form 2496 (Disposition Form) from his available service record shows the applicant opted not to receive a medical examination as part of his release from active duty (REFRAD). On this same form, a medical official from the Orthopedic Clinic noted, on 23 December 1985, he had reviewed the applicant's medical records and, based on that review, determined a medical examination was not required. On the date the medical official signed this form, the applicant had served 3 months and 24 days. 9. On 12 January 1986, the applicant's commander notified him in writing he was being considered for elimination action under the provisions of chapter 11 (Entry-Level Performance and Conduct), Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel). The specific reasons for the separation action were the applicant's lack of motivation, poor attitude, and his failure to meet minimum APRT standards. 10. On 12 January 1986, the applicant acknowledged the proposed separation action. He also affirmed he understood the procedures for his contemplated separation action as well as his rights, and further indicated he understood he would receive an entry-level separation with an uncharacterized character of service. He waived his rights, and elected not to submit a statement in his own behalf. His commander witnessed his waiver. 11. The separation approval authority approved the applicant's REFRAD, and waived the recycle requirement on 15 January 1986. 12. His DD Form 214 shows he was REFRAD with an uncharacterized character of service. He completed 4 months and 18 days of net active creditable service. The separation authority is listed as AR 635-200, paragraph 11-3A/B. The narrative reason for separation was listed as entry-level status performance and conduct. 13. There is no indication he applied to the Army Discharge Review Board for a change of his discharge within that board’s 15-year statute of limitations. 14. The applicant provides: a. Three DA Forms 705, indicating: * 30 October 1985 (while still in BCT) - he passed, achieving scores over 50 for each event (he attained a score of 57 points for push-ups) * 11 December 1985 (while in AIT) - received a score of 29 points for push-ups, 80 points for sit-ups, and 78 points for the 2-mile run; the scorecard shows he failed the AIT APRT * 17 December 1985 (during AIT) - received a score of 51 points for push-ups, 90 points for sit-ups, and 78 points for the 2-mile run; the scorecard states he failed the AIT APRT b. Three certificates of training showing completion of BCT, Defensive Driving Course, and Motor Transport Operators Course. c. A Hand Grenade Qualification Scorecard reflecting he passed 5 of 7 stations, qualifying him for the qualification standard of second class. d. A Record File Scorecard indicating qualification as a Marksman. The weapon is not specifically listed, but the various firing positions shown are consistent with those used for the M-16 rifle. REFERENCES: 1. Field Manual 21-20 (Physical Readiness Training), in effect at the time, prescribed the standards for the APRT. It stated initial-entry training standards required Soldiers to achieve at least 50 points in all three APRT events (push-ups, sit-ups, and the 2-mile run) by the 6th week of initial training. Prior to graduation, Soldiers had to attain the Army standard of 60 points per event, with at least 180 points overall. 2. According to website WebMD, scoliosis is a lateral curvature in the normally straight vertical line of the spine. It can be caused by a bone abnormality present at birth, the result of abnormal muscles and nerves, the result of trauma (such as major back surgery), or from no clearly identifiable cause (called idiopathic scoliosis). About 2-3 percent of Americans aged 16 have scoliosis, and idiopathic scoliosis is a condition of adolescence affecting ages 10 through 16. 3. AR 40-501 (Medical Services - Standards of Medical Fitness), in effect at the time, prescribes policies for medical fitness standards for enlistment and retention. a. Chapter 2 (Medical Fitness Standards for Appointment, Enlistment, and Induction) addresses accession fitness standards for the spine in paragraph 2-36 (Spine and Sacroiliac Joints). Paragraph 2-36c (Deviation or curvature of spine) states a cause for rejection for enlistment would be: * mobility and weight-bearing power being poor * more than moderate restriction of normal physical activities * curvature of such a nature as to prevent the individual from following a physically active vocation in civilian life * curvature of a degree that would interfere with the wearing of a uniform or military equipment * symptomatic associated with positive physical finding(s) and demonstrable by x-ray b. Chapter 3 addresses retention standards, and, with regard to scoliosis, it states in paragraph 3-34 (Spine, Scapulae, Ribs, and Sacroiliac Joints), subparagraph e (Scoliosis), a severe deformity with over 2 inches deviation of tips of spinous process from the midline would fail retention standards. 4. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel from the Army. a. Chapter 3 described the types of authorized characterizations of service, to include honorable, general, and uncharacterized. (1) Paragraph 3-7a describes an honorable discharge as a separation with honor. The honorable characterization was appropriate when the quality of the Soldier’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be inappropriate. (2) Paragraph 3-7b states a general discharge was a separation from the Army under honorable condition. Soldiers whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge received a general discharge under honorable conditions. (3) Paragraph 3-9 (Uncharacterized Separations) addressed how entry-level separations were to be characterized. * for the purposes of characterization of service, the Soldier’s status was determined by the date of notification that separation proceedings had been initiated * upon enlistment, a Soldier qualifies for entry-level status during the first 180 days of continuous active military service or the first 180 days (6 months) of continuous active service after a service break of more than 92 days of active service * as an exception, and on a case-by-case basis, the Secretary of the Army can determine that a characterization of honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty; this characterization is authorized when the Soldier is separated by reason of selected changes in service obligations, convenience of the government, and Secretarial plenary authority b. Paragraph 5-11 (Separation of Personnel who did not Meet Procurement Medical Fitness Standards) states, Soldiers who were not medically qualified under procurement medical fitness standards when accepted for initial enlistment will be separated. (1) Medical proceedings must establish appropriate military medical authority identified the condition within 4 months of the Soldier's initial entrance on active duty, and: * would have permanently disqualified him for entry into military service, had it been detected at the time; and, * would not disqualify him for retention in military service under the provisions of chapter 3, AR 40-501 (2) The characterization of service for Soldiers separated under this provision of regulation will normally be honorable, but will be uncharacterized if the Soldier is in an entry-level status. For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty. c. Chapter 11 provided the criteria for the separation of Soldiers who lacked the necessary motivation, discipline, ability or aptitude to become productive, or failed to respond to formal counseling. (1) The regulation essentially required the Soldier to have voluntarily enlisted, be in basic, advanced individual, on the job, or service school training, and not have completed more than 180 days of active duty on their current enlistment at the time his/her separation action was initiated. (2) Separation was appropriate when the Soldier demonstrated he or she was not qualified for retention due to a failure to meet the minimum standards prescribed for successful completion of training. This required a finding the Soldier showed a lack of aptitude, ability, motivation, or self-discipline; or had demonstrated character and behavior characteristics not compatible with satisfactory continued service. An uncharacterized description of service for separation under this chapter was required. DISCUSSION: 1. The applicant's commander initiated separation action because of his lack of motivation, a poor attitude, and his failure of the APRT. He acknowledged the reason for and the type of discharge he would receive. His separation occurred prior to his completion of 180 days (6 months) of active service. As such, he was still in an entry-level status. In accordance with the regulation in effect at the time, he received an uncharacterized character of service. 2. For the first 180 days of continuous active military service, a Soldier's service is under review. When separated under chapter 11 within the first 180 days, an uncharacterized description of service was required. An honorable characterization was available only if the Soldier's service clearly warranted that characterization based on unusual circumstances of personal conduct and performance of military duty. Approval by the Secretary of the Army was required. 3. He asserts he had scoliosis, and this medical condition prevented him from successfully passing the APRT. a. His available service record contains a DD Form 689 that indicated he was evaluated for scoliosis, but the record is void of any information as to whether or not a physician actually confirmed this as a diagnosis. b. Even if such a diagnosis were confirmed, however, there would still need to be proof this condition prevented him from passing the APRT. No such evidence is either provided by the applicant or available in his service record. c. Had it been determined he had scoliosis to such a degree that he could not pass the APRT, this would likely have required medical proceedings to be conducted under the provisions of paragraph 5-11, AR 635-200. The purpose of these proceedings would be to verify medical conditions, and ascertain if the identified conditions failed procurement medical fitness standards. If the condition failed procurement medical fitness standards, the result would have been separation. His separation would still have been considered entry-level, with an uncharacterized character of service. It just would have been under a different provision of the regulation. 4. An entry-level status (uncharacterized) discharge is not meant to be a negative reflection of a Soldier's military service. It merely means the Soldier did not serve on active duty long enough for his or her character of service to be appropriately rated. The applicant was REFRAD after completing 4 months and 18 day of net active service. 5. The ABCMR does not grant requests for discharge upgrades solely for the purpose of making an applicant eligible for veterans benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. Additionally, the granting of veteran’s benefits is not within the purview of the ABCMR. Any questions regarding eligibility for health care and other benefits should be addressed to the VA. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010175 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010175 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2