IN THE CASE OF: BOARD DATE: 16 February 2017 DOCKET NUMBER: AR20150016189 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 February 2017 DOCKET NUMBER: AR20150016189 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 February 2017 DOCKET NUMBER: AR20150016189 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, through her Member of Congress, requests correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a change in her characterization of service and narrative reason for separation. 2. The applicant states: a. Her narrative reason for separation, which is shown as "Failed Medical/Physical/ Procurement Standards," is incorrect and proven to be not true. While on active duty for training, she incurred several injuries, both physical and mental due to wrongful abuse by her company commander. b. She was pulled from training by an Army physician due to a knee injury; however, she was still forced to endure road marches, detail duty, and other actions, which further worsened her condition. c. Since her separation, she has been evaluated by several physicians and orthopedic specialists who all came to the same conclusion; her now chronic condition was directly related to her injuries while on active duty. d. She's been awarded a 100 percent (%) service-connected disability rating by the Department of Veterans Affairs (VA). However, while in the process of buying her first home, she was denied a Certificate of Eligibility (COE) due to her Army personnel records. She requests her records be corrected to show she received an honorable discharge and to show her narrative reason for separation as "Service Connected Disability," which is current and true. 3. The applicant provides a one-page self-authored statement and copies of: * her DD Form 214 for the period ending 29 May 2008 * three letters from the VA, dated 3 December 2014, 9 June 2015, and 3 September 2015 * a photocopy of her VA Healthcare Membership Identification (ID) Card and Department of Defense (DOD) ID and Privilege Card 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 U.S. Army Reserve (USAR) on 12 February 2008. She was ordered to initial active duty for training (IADT) effective 16 April 2008 to attend initial entry training at Fort Jackson, SC, for qualification in military occupational specialty (MOS) 42A (Human Resources Specialist) . 3. The applicant's records were viewed by an Entrance Physical Standards Board (EPSBD). Her record contains a DA Form 4707 (EPSBD Proceedings), dated 9 May 2008, which shows that after careful consideration of her medical records, laboratory findings, and medical examination, the board found her medically unfit for enlistment in accordance with current medical fitness standards and, in the opinion of the evaluating physician, the conditions existed prior to service (EPTS). This form shows the following entries: a. Diagnosis: Anxiety Disorder. b. History of EPTS Condition: Soldier presented with a current history of an anxiety disorder with anxiety attacks. Medical records obtained by her primary care physician confirm treatment with medication for major depression on 30 January 2008. Soldier states her struggles with depression and anxiety began in December 2007 after her mother was hospitalized with a terminal illness. She reports worsening low mood and anxiety since discontinuing her medications on 12 April; two days prior to reporting to Fort Jackson. Soldier failed to disclose her previous history prior to enlistment or at MEPS [Military Entrance Processing Station] (emphasis added). c. Findings: Soldier reports spontaneous episodes of anxiety attacks with hyperventilation, sweats, heart palpations, dizziness with fainting, and tearfulness. She has experienced two such episodes since her arrival with one episode lasting 40 minutes. She reports worsening symptoms with overexertion and exposure to hot temperatures. She received treatment by being prescribed medications. She is currently not motivated to train and the extent of her symptoms makes it difficult to carry out her military training. She would not be able to successfully be treated without extensive counseling and medications; which is not conducive to the military environment. d. Recommendations: It is recommended that this Soldier be separated from the U.S. Army for failure to meet procurement standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness). 4. The medical approving authority approved the findings of the EPSBD on 13 May 2008 and forwarded the recommended course of action to the unit commander for disposition. 5. The applicant was informed of the medical findings on 20 May 2008. She acknowledged she understood that legal advice of an attorney employed by the Army was available to her or that she could consult civilian counsel at her own expense. She also acknowledged she understood that she could request to be discharged without delay or to request retention on active duty. If retained, she could be involuntarily reclassified into another military occupational specialty based upon her medical condition. On the same date, she concurred with the proceedings and requested she be discharged from the Army without delay. 6. Her immediate commander recommended her separation from the Army on 20 May 2008. The separation approving authority directed her discharge from the Army on 21 May 2008. 7. The applicant's DD Form 214 shows she was discharged on 29 May 2008, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-11, by reason of her failure to meet procurement medical fitness standards. She was issued an "uncharacterized" character of service with a separation code of "JFW." She completed 1 month and 14 days of net active service and was not awarded an MOS. 8. The applicant provides the following documentation in support of her application: a. Two VA letters, dated 3 December 2014 and 9 June 2015, which summarize her monthly benefit award amount after being awarded a 100% disability rating. The VA shows, for their purposes, her characterization of service as honorable. b. A VA letter, dated 3 September 2015, informing her of their decision to deny her eligibility for the VA Home Loan guarantee, due to her not serving the minimum time required for this benefit along with her reason for separation. It further stated a minimum of 6 years is required during the era in order to be eligible for this benefit. c. A photocopy of her VA Healthcare Membership ID Card and DOD ID Privilege Card as proof that she receives VA health care and is receiving DOD benefits after receiving a 100% VA disability rating. 9. Her record is void of documentation and she does not provide documentation that details the medical conditions for which the VA granted her service-connected disability. 10. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of her discharge. The ADRB determined she was properly and equitably discharged and denied her request for a discharge upgrade on 13 April 2009. REFERENCES: 1. Army Regulation 635-200, in effect at the time, sets policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Paragraph 3-9 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) an under other than honorable conditions characterization was authorized when 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. b. Entry-level status is defined as the first 180 days of continuous active service for Regular Army Soldiers. c. 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. A 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. 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. 2. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation. Chapter 2 provides for the physical standards for enlistment/induction. Paragraph 2-27k states current (or history of) anxiety disorders (anxiety or panic) do not meet the standard. DISCUSSION: 1. The applicant contends her records should be corrected to show her discharge resulted from "service-connected disability"; however, the evidence of record shows she was found medically unqualified for service during IADT due to a condition that was considered to have existed prior to service. Although she was allowed to enlist, it appears her condition impacted her ability to complete initial entry training. 2. The EPSBD proceedings show she was evaluated by competent medical authorities and she was diagnosed with anxiety disorder. Accordingly, the EPSBD recommended her separation. When informed of the medical findings, she concurred with them and requested discharge from the Army without delay. 3. The evidence of record shows she was in an entry-level status at the time of her separation. As a result, her service was appropriately described as "uncharacterized" in accordance with governing regulations. All requirements of law and regulation were met and her rights were fully protected throughout the separation process. 4. She implies that she has an honorable discharge and requests a change to her DD Form 214; however, her DD Form 214 clearly shows she was separated with an uncharacterized character of service. It is assumed she believes she was awarded an honorable discharge based on the fact that the VA determined her service was honorable for their own purposes in its determination of her disability rating. This does not affect the Army's determination of her characterization of service. 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 her records. 6. An uncharacterized service is not derogatory, but is used if the Soldier has not completed more than 180 days of creditable continuous active duty prior to the initiation of separation. It merely means the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise. 7. The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability. Subsequent to her discharge, the VA evaluated her and awarded her service-connected disability compensation. However, a rating by the VA does not establish error by the Army. Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016189 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016189 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2