BOARD DATE: 5 January 2017 DOCKET NUMBER: AR20150012363 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 January 2017 DOCKET NUMBER: AR20150012363 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 January 2017 DOCKET NUMBER: AR20150012363 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 a change of his uncharacterized discharge to an honorable discharge with a medical retirement. 2. The applicant states: a. He was discharged with a preexisting condition and was not properly medically separated from the service. He has since received a service-connected disability rating of 50 percent (%) from the Department of Veterans Affairs (VA). He was not aware of these injustices until processing his VA disability claims. b. At the time of his discharge, he was placed in a preexisting condition category according to his medical board. There is no information other than a "Waiver Is Not Recommended" included on the DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings), which does not disclose the reasons for his discharge. The attached DD Form 2807-1 (Report of Medical History) and DD Form 2808 (Report of Medical Examination) show his condition was disclosed at the time of entry on active duty. During basic training, his orthopedic inserts were taken away from him although he advised personnel during his in-processing that they were medically necessary. The removal of the inserts resulted in a significant issue and caused him to fall, leading to severe back pain. The impact of training without his inserts exacerbated his foot condition. As a result, he currently has constant pain in his feet. c. He had every intent to serve his country. He was raised to serve his country as his retired father and grandfather chose. He currently has a severe medical condition that is constantly and potentially worsening due to his age as result of the removal of his medically necessary orthopedic inserts. 3. The applicant provides his DD Form 2807-1, DD Form 2808, Medical 200 Board Report, DA Form 4707, DD Form 214 (Certificate of Release or Discharge from active duty), and a letter from the VA. 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 the cases 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. 2. The applicant provided and his records contain the following: * DD Form 2807-1 he completed on 1 December 2008, for the purpose of enlistment in the Regular Army (RA); he indicated on the form that he had orthopedics for fallen arches and he experienced pain when the inserts were not worn * DD Form 2808 showing he underwent an RA enlistment medical examination on 1 December 2008; this form indicated he was diagnosed with flat feet (pes planus) and he was found qualified for enlistment 3. He enlisted in the RA on 5 February 2009. 4. His records also contain the following: a. A DA Form 3349 (Physical Profile), dated 10 March 2009, showing he was assigned a temporary profile for flat feet. His assignment limitations included no 2-mile run and Army Physical Fitness Test (APFT) walk or swim. b. A Medical 200 Board Report, dated 10 March 2009, showing he received treatment for arch pain and was diagnosed with flat feet; the examining orthopedic surgeon found the applicant did not meet retention standards in accordance with Army Regulation (AR) 40-501 (Standards of Medical Fitness) and referred him to his command for adjudication. c. A DA Form 4707, dated 16 March 2009, showing, after consideration of his medical records, laboratory findings, and examinations, an EPSBD found him medically unfit for enlistment in accordance with current medical fitness standards, and in the opinion of the evaluating physician, the applicant's condition existed prior to service (EPTS). This form indicated "Waiver Is Not Recommended." 5. On 23 March 2009, the medical approving authority approved the findings of the EPSBD and recommended the applicant be separated from the service under the provisions of paragraph 5-11 of AR 635-200 (Active Duty Enlisted Administrative Separations). 6. On 31 March 2009, after having been informed of the medical findings and his rights, the applicant concurred with the proceedings and requested a discharge from the Army without delay. His unit commander recommended approval on 1 April 2009. 7. On 3 April 2009, the separation authority approved the applicant's discharge. 8. He was discharged on 9 April 2009. He completed 2 months and 5 days of active service. His service was "uncharacterized." 9. He provided a letter from the VA, dated 24 November 2014, wherein he was advised of an increased service-connected disability rating of 50% for flat feet effective 18 July 2014. 10. In an advisory opinion, dated 9 August 2016, the Army Review Boards Agency (ARBA) Senior Medical Advisor stated: a. A review of the available documentation and active duty electronic medical records did not provide sufficient evidence to support a change in the character of the discharge or a medical retirement from the Army for the applicant. b. The documentation included a Medical 200 Board Report completed by a qualified provider. The diagnosis listed was pes planus, a preexisting condition exacerbated by military service. According to the documents, the applicant failed to meet retention standards in accordance with AR 40-501, paragraph 2-10b(4). He was referred to his command for further adjudication. The EPSBD Proceedings reflected concurrence with the determination of a preexisting condition. 11. The advisory opinion was provided to the applicant on 10 August 2016 for acknowledgement/rebuttal. In his rebuttal, dated 6 October 2016, the applicant stated: a. At the time of his enlistment into the Army, he advised personnel of his need for his orthopedic inserts for his flat feet. He received two medical waivers for his flat feet, one for military entrance and one for airborne training that he was able to physically perform without issue. Upon entry into basic training a sergeant advised him that he did not need the inserts and to place them with his personal belongings as he stated "my condition was not that bad." b. As a direct result of this removal he began training without the medical equipment that was required for him to successfully complete the training. This was no fault of his own; he was following orders from a senior enlisted individual. About a week into training without his medically required orthopedic inserts, he slipped and fell, landing on his knees during a morning formation. When attempting to advise the drill sergeant of the injury and pain he felt, he was told that he was fine and to continue, which he did throughout the entire day. During evening physical training, he was unable to proceed due to the pain and injury. He advised the drill sergeant of this and was advised that they would take him to the emergency room in the morning. c. During the next morning formation, he was processed for sick call and taken to the emergency room, approximately 24 hours after the injury. X-rays were taken, shots given for pain, and crutches and medication were issued for pain management. The next day, on follow-up to sick call, he was diagnosed with vertigo and ordered to bed rest for 2 days. At the end of his rest when attempting to get up and move again, he noticed pain in his lower back. He received treatment and medication for his lower back pain. He was advised that the only way to be discharged for the back injury was for the Army to discharge him for flat feet. d. Prior to joining the Army he experienced occasional hip and knee pain that was resolved by the orthopedic inserts. He never experienced significant issues with foot or back pain. After the inserts were taken from him and the fall that occurred with the lack of medical care, he currently has constant pain in his feet. He received a 50% service-connected rating for his feet from the VA. His VA records prove that he had an injury that occurred during his military service. He has no argument that he failed to meet retention standards. If it was only pain in his feet he would have been able to proceed, but as a result of the back injury and pain resulting from the fall, he was unable to continue. He decided to proceed with the discharge under the podiatrist's suggestion that he was not receiving adequate care. e. He is including a DA Form 705 (APFT Scorecard) showing he was capable of performing physically even with the foot condition when he had his orthopedic inserts. He is also including two ATZM-BA Forms 1199 (Fort Knox IET Sick Slip), one from the sick call physician referring him to physical therapy and the second from the physical therapist who was treating him for both the knee sprain and back injury. The documentation determined that he was experiencing issues with his feet, knees, and hips. f. Finally, his chiropractor sent his command staff a letter in an effort to return his orthopedic inserts to maintain his body alignment. The letter stated the removal of those devices could result in significant problems with his feet, knees, and back that could worsen and result in the need for surgery. Once the command staff received that letter they returned his inserts, but that was nearly 3 weeks after the injury, and irreversible damage had occurred. He is further including a magnetic resonance imaging report performed by the VA shortly after leaving the service that documents an annular tear in his lower back (L5-S1). g. As a direct result of the removal of the inserts, he advised personnel of the waiver he received during the medical entry process, he sustained an injury that was not properly treated when observed, and he reported to multiple sergeants in charge. The medical treatment received was also very sub-par during the process. The lack of records for the multiple treatments he received during his period of service is also very disheartening. He chose the Army because he wanted to pursue a career in law enforcement and combat training appeared best for Federal law enforcement. However, his life is forever affected by the actions that occurred during his period of service. He believes the Army failed him during these events and he hopes they can atone for these errors. REFERENCES: 1. AR 635-200, in effect at the time, set forth the basic authority for the separation of active duty enlisted personnel. Paragraph 5-11 specifically 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 entry on active duty, active duty for training, or initial entry training would be separated. a. A medical proceeding conducted by an EPSBD, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within six months of the Soldier's initial entrance on active duty, that the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at the time of enlistment, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of AR 40-501, chapter 3. b. The characterization of service for Soldiers separated under this provision would normally be honorable, but will be shown as uncharacterized (entry level status) if the Soldier has not completed more than 180 days of creditable continuous active duty service prior to the initiation of separation action. 2. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, established the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, U. S. Code, Chapter 61, and DOD Directive 1332.18. It set forth policies, responsibilities, and procedures that apply in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. 3. AR 40-501, in effect at the time, governed medical fitness standards for enlistment, induction, appointment, retention, and separation. Chapter 2 provided the physical standards for enlistment/induction. Paragraph 2-10b(4) pertained to flat feet. 4. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active 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. The VA does not make a determination of whether the medical condition is disqualifying for retention in the Army. DISCUSSION: 1. The evidence of record shows medical authorities determined the applicant suffered from a disqualifying medical condition that EPTS immediately upon reporting to active duty. According to accepted medical principles, the manifestation of a chronic condition from the date of entry into active military service (or so close to that date of entry that the disease could not have started in so short a period) is accepted as proof the condition existed prior to entrance into active military service. 2. His records were evaluated by an EPSBD that found him medically unfit for a condition that was neither incurred in nor aggravated by his active service. There was compelling evidence to support a finding that he had a pre-existing condition. Accordingly, the EPSBD recommended his separation. He was counseled and advised of his rights, and he elected a discharge from the Army without delay. All of his rights were fully protected throughout the separation process. 3. As for the characterization of his service, a member's service is under review during the first 180 days of continuous active military service. When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant a discharge under other than honorable conditions. An honorable characterization may be issued only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and is approved by the Secretary of the Army. 4. In all other circumstances, an uncharacterized separation is issued regardless of the reason for separation. An uncharacterized discharge is neither positive nor negative; it is not derogatory. It simply means the Soldier did not serve on active duty long enough for his or her service to be rated. The characterization of service he received was in compliance with the governing regulation. 5. The VA operates under its own policies and may compensate a veteran for any medical condition which they determined to be service related. Whether that condition was medically disqualifying for retention is not relevant in the VA's determination. As such, the fact that the VA granted him a disability rating for his medical condition does not establish an error in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012363 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012363 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2