IN THE CASE OF: BOARD DATE: 16 March 2017 DOCKET NUMBER: AR20150016288 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 March 2017 DOCKET NUMBER: AR20150016288 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 March 2017 DOCKET NUMBER: AR20150016288 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, in effect, correction of the narrative reason for separation shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty), to show he was discharged for medical disability versus showing he was discharged due to "entry level status performance and conduct." He further requests a personal appearance hearing before the Board. 2. The applicant states he was injured in basic training, thereby aggravating an existing condition, and was hospitalized on several occasions during which time he experienced debilitating pain. He is not afforded the benefits given to other service members because of the type of discharge he received. 3. The applicant provides a copy of a "Summary of Benefits" letter from the Department of Veterans Affairs (VA), dated 23 September 2015. 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 26 November 1986. He was assigned to Fort Sill, Oklahoma, for the purpose of completing his initial entry training; however, he did not complete this training. 3. The applicant's record reveals numerous DA Forms 4856 (General Counseling Form), dated between 4 December 1986 and 18 March 1987. a. On 11 December 1986, he was counseled for malingering. The malingering counseling noted that after he complained about experiencing severe back pain, he was observed raising his body without restraint. He was observed by medical personal at the hospital for three days, after which the doctor diagnosed his condition as being minor and returned him to duty with training at a moderate pace. He was determined to use his condition as an excuse to acquire a medical discharge. The applicant concurred with the counseling and placed his initials in the appropriate block and signed and dated the form. b. On 18 January 1987, he was counseled for failing his first physical readiness test. He concurred with the counseling and placed his initials in the appropriate block and signed and dated the form. 4. A DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings), dated 2 March 1987, shows an EPSBD found: a. In his eleventh week of training, while in advanced individual training, the service member complained of low back pain. He had a history of episodic [having symptom-free periods that alternate with the presence of symptoms] back pain through basic training. b. A physical examination within normal limits except that a scoliosis x-ray series indicated mild levoscoliosis [side-to-side curvature of the spine] to the left. The diagnosis was mild scoliosis with persistent symptoms. c. The attending physician noted the applicant did not meet medical fitness standards and determined his condition existed prior to service (EPTS). d. The medical approving authority disapproved the findings of the EPSBD on 11 March 1987 and rendered the following reasoning: 20-year old male who according to SF 93 available in his health record and dated 6 October 1986 (date of enlistment physical exam), had never complained of low back pain. Reported to reception station on 26 November 1986 and within one month was hospitalized for complaints of low back pain. Hospitalized a second time on 20 February 1987 with bronchitis and low back pain. Physical exams have been unremarkable. X-ray findings are minimal and past medical history is non-contributory. Based on available evidence, it is my opinion that no EPTS medical condition exists. 5. A DA Form 3822-R (Report of Mental Status Evaluation), dated 13 March 1987, shows he was evaluated by a licensed medical provider stated the applicant' behavior was normal and fully alert, with unremarkable mood or affect. He was clear and normal in thinking process and thought content with good memory. It stated the applicant was mentally responsible, had the mental capacity to understand and participate in any proceedings, and met the retention requirements of chapter 3, Army Regulation 40-501 (Standards of Medical Fitness). It additionally stated: * at the time of evaluation, he does not appear to be afflicted with any diagnosable psychiatric illness requiring a medical board or any ongoing medical treatment * he was not psychotic and did not appear to be severely depressed * he has indicated that he will do anything, including self-destructive behavior, to obtain a discharge from the Army * he does not appear to have any genuine desire to end his life, he is at risk of harming himself by misadventure to obtain a separation * he knows right from wrong and fully able to conform to the right; fully responsible for his behavior * he be recommended that his behavior be handled through appropriated administrative channels 6. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on 18 March 1987, for violating Article 128 of the UCMJ; specifically, for unlawfully striking a fellow Soldier in the head with a metal folding chair, on or about 13 March 1987. 7. The applicant's commander notified him 19 March 1987 that he was initiating action to discharge the applicant from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, due to entry level performance and conduct. His commander cited, as the specific reason for his proposed action, the following: a. His hostile attitude and total unwillingness to adapt to the military environment. His constant complaints of lower back pain and refusal or ability to participate in unit physical training made it apparent that he would not develop into a productive Soldier. b. Since his arrival, he has consistently stated he made a mistake joining the Army and wanted out at all cost. He underwent extensive tests and physical therapy in an effort to determine if he had a back problem. An EPTS Medical Board determined that his condition did not meet the criteria for discharge under provisions of paragraph 5-11 of Army Regulation 635-200. c. Upon learning of the board's determination, he became very despondent and hostile. He threatened to harm himself and others if he was not let out of the Army. Because of his hostile attitude, he was involved in a fight that resulted in striking two other Soldiers with a metal chair. d. He was evaluated by mental health that did not reveal any diagnosable psychiatric illness or any ongoing medical treatment. Because of his hostile attitude, refusal to train, and threats of bodily harm to himself and to others, a recommendation of immediate discharge is necessary. e. He was advised of all of his rights. 8. The applicant acknowledged receipt of the separation notification memorandum and consulted with counsel on 20 March 1987. He stated he understood that, if approved, he would receive an uncharacterized, entry level separation and its effects. He elected not to make any statements in his own behalf, did not request a separation physical and waived his rights. 9. The applicant's immediate commander recommended his separation from the Army on 20 March 1987, under the provisions of Army Regulation 635-200, chapter 11, due to his failure to adapt motivationally. He also recommended he not be transferred to the Individual Ready Reserve. 10. The separation authority reviewed the proposed separation action and approved an entry-level separation with an uncharacterized characterization of service, in accordance with Army Regulation 635-200, chapter 11, and waived further rehabilitative efforts on 24 March 1987. 11. The applicant was discharged accordingly on 27 March 1987. The DD Form 214 he was issued at the time shows he was discharged under the provisions of Army Regulation 635-200, chapter 11-3a, by reason of entry level status performance and conduct. He received an entry level status character of service and completed 4 months and 2 days of net active service. 12. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 13. The applicant submitted a copy of a "Summary of Benefits" letter from the VA dated 23 September 2015. This letter shows he received a 70 percent (%) service-connected disability rating. It does not indicate the specific medical conditions or reasons. 14. On 17 July 2016, the staff of the Board sent the applicant a letter requesting copies of his Army medical records and copies of his VA medical treatment records, if applicable. His application was placed on hold for a period of 90 days to allow him time to respond. It appears he did not respond or provide the requested medical evidence to support his application. 15. In connection with processing of this case, an advisory opinion was obtained on 9 November 2016 from the Army Review Boards Agency (ARBA) Senior Medical Advisor. The medical advisory opinion states: a. A review of the applicant's electronic medical record (AHLTA) revealed no records (Note: AHLTA implementation began in 2003). His record do contain the following medical documents: (1) DD Form 2246 (Applicant Medical Prescreening Form), dated 1 October 1986 indicated the applicant had no physical impairments or medical conditions. (2) Standard Form 93 (Report of Medical History), dated 6 October 1986 indicated the applicant was in good health, but had a cold and was taking ampicillin as prescribed. (3) Standard Form 88 (Report of Medical Examination), dated 6 October 1986 indicated a normal clinical evaluation, was accessed with no physical profile, and was qualified for an Army enlistment. (4) Standard Form 600 (Chronological Record of Medical Care), dated 17 December 1986 revealed a follow-up hospitalization at one week for low back pain with normal exam and good range of motion. The assessment was low back pain resolved and follow-up as needed and return to full duty. (5) DA Form 5181-R (Screening Note of Acute Medical Care), dated 3 January 1986 (sic) with chief complaint of back pain with pinching feeling down left leg. Also, stated the applicant walks with a limp and wears lifting shoes for brace shop. No trauma to back. (6) DA Form 5181-R, dated 5 January 1987 with chief complaint of back pain and was seen by physical therapy. Was diagnosed of short leg and given a one-inch build up left shoe. Physical therapy feels no medical problem. (7) Standard Form 519-B (Radiologic Consultation Request/Report), dated 21 February 1987, shows scoliosis view of the entire spine x-ray, with mild levoscoliosis with convexity to the left was noticed. No gross evidence of osseous lesions seen. A discharge note of a hospital stay from 20 - 23 February 1987, shows diagnoses of tension headache, upper respiratory infection with early bronchitis, and scoliosis. (8) Standard Form 600, dated 2 March 1987, a follow-up on the hospitalization for bronchitis (resolved) and back pain. (9) DA Form 4707, dated 2 March 1987, notes the chief complaint of low back pain with episodic through basic training and in the past. Physical examination within normal limits except scoliosis x-ray indicates mild levoscoliosis to the left. The diagnosis is mild scoliosis with persistent symptoms. It was noted EPTS as "Yes" and service aggravated as "NO." (10) A memorandum [with the DA Form 4707] written that based on the available evidence, it is the opinion [of the medical approving authority] that no EPTS medical condition exists. This was based on his health record, dated 6 October 1986 (date of enlistment physical exam), and had never complained of low back pain. He was hospitalized for complaints of back pain. He was hospitalized on 20 February 1987 with bronchitis and low back pain. Physical exam have been unremarkable. X-ray findings are minimal and past medical history is non-contributory. b. A VA Rating Decision document, dated 12 January 1988, indicated the following information: (1) Private medical report indicates the veteran was seen in 1984 at which time he was found to have scoliosis of the lumbar spine and secondary shortening of the left leg. Findings were spasm of the muscles and failure to fully flex the back. He was treated conservatively at that time. (2) Service medical records note that the veteran was seen during basic training with complaints of low back pain. X-rays were consistent with scoliosis and shortening of the left leg was also indicated. The condition was considered by the services to have existed prior to entrance into service without evidence of aggravation. Service records are negative for evidence of an injury. (3) The veteran's back condition is considered developmental in nature without evidence of aggravation during service. Claimed back, hip and neck conditions secondary to a fall that is not substantiated by the veteran's service records. c. A VA letter, dated 23 September 2015, stated his medical conditions combined for a service-connected disabilities at 70%, with no other information or medical records provided. (Private civilian records from 1984 and 1986, noted by the VA, are not available for review. There was no history that the mild levoscoliosis affected the applicant's physical activity prior to enlistment, or was symptomatic prior to enlistment, or required external support prior to enlistment, or interfered with proper wearing of uniform or equipment while in the service. d. The applicant met medical accession standards for mild levoscoliosis (condition not reported on medical history on enlistment) in accordance with chapter 2, Army Regulation 40-501, and following the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. e. The applicant met medical retention standards for mild levoscoliosis and low back pain in accordance with chapter 3, Army Regulation 40-501, and following the provisions set forth in Army Regulation 635-40 that were applicable to the applicant's era of service. f. The applicant's medical conditions were duly considered during separation processing. The applicant was separated for unacceptable performance and conduct. A review of the available documentation found no evidence of a medical disability or condition that would support a change to the character or reason for the discharge in this case. 16. The advisory opinion was provided to the applicant on or about 14 November 2016, to afford him the opportunity to respond to its content. He did not respond. REFERENCES: 1. Army Regulation 635-200 prescribes policies, standards, and procedures providing for the orderly administrative separation of active duty enlisted Soldiers. a. Chapter 3 states a separation will be described as entry level with uncharacterized service if the Soldier has less than 180 days of continuous active duty service at the time separation action is initiated. b. Chapter 11 provides for the separation of personnel because of unsatisfactory performance or conduct (or both) while in an entry-level status. When separation of a Soldier in an entry-level status is warranted by unsatisfactory performance or minor disciplinary infractions (or both) as evidenced by inability, lack of reasonable effort, or failure to adapt to the military environment, he or she will normally be separated per this chapter. Service will be uncharacterized for entry-level separation under the provisions of this chapter. 2. 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. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings. 3. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant requests correction of the narrative reason for separation shown on his DD Form 214 to show he was discharged for medical disability versus showing he was discharged due to "entry level status performance and conduct. 2. The applicant contends he should be given a medical discharge based on his existing medical conditions that were aggravated while in basic training. His available record indicates he received an entrance physical examination that did not note any previous existing medical conditions. Additionally, an EPSBD was conducted and he was disapproved for an EPTS discharge. 3. There is no medical evidence that warranted his referral through medical channels, as he met medical retention standards for his medical condition (mild levoscoliosis) in accordance with applicable Army regulations. This is confirmed by the independent review of the medical advisory opinion. 4. His available record contains counselings that revealed his hostile attitude and unwillingness and desire to adapt to the Army to include receiving non-judicial punishment. Accordingly, his chain of command initiated separation under the provisions of Army Regulation 635-200, chapter 11, for entry level status performance and conduct. 5. The applicant did not complete 180 days of continuous active service prior to being discharged. There were no procedural errors that would have jeopardized his rights and all requirements of law and regulation were met. 6. An uncharacterized discharge is not meant to be a negative reflection of a Soldier's military service. It merely means that 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 applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016288 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016288 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2