IN THE CASE OF: BOARD DATE: 31 January 2017 DOCKET NUMBER: AR20160001667 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: 31 January 2017 DOCKET NUMBER: AR20160001667 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 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. Enclosure 1 IN THE CASE OF: BOARD DATE: 31 January 2017 DOCKET NUMBER: AR20160001667 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) to show his uncharacterized service was upgraded to honorable based on his medical condition. 2. The applicant states in a two-page handwritten letter the following, as summarized: a. He contends that he was told at the time that his discharge would be honorable based on his medical condition. When he recently requested a copy of his DD Form 214 he found out that his service was uncharacterized. b. He states that he was issued the wrong size boots, which he wore for 8 weeks in basic training because his request to exchange them for the correct size was refused by his drill sergeants. As a result his foot was screwed up. He was told he would be medically discharged at some point while in advanced individual training (AIT). c. He understood that he would be discharged because he needed surgery on his foot that the Army would not pay for it because he was still in a training status. d. He infers that he was told he could reenter the Army and resume his AIT after completion of his foot surgery and was medically cleared by his doctor. He spent several days in Syracuse, New York trying to get back into the Army but was told he was disqualified. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 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 (RA) on 15 May 1997. He attended and completed basic combat training at Fort Jackson, South Carolina. He was reassigned to Aberdeen Proving Ground, Maryland for AIT in military occupational specialty (MOS) 63W (Wheel Vehicle Repairer). 3. A DA Form 4707 (Entrance Physical Standards Board (EPSBD Proceedings), dated 12 August 1997, states the EPSBD determined, based on a careful consideration of medical records, laboratory findings, and a medical examination, that the applicant had a history of bilateral foot pain. He had increased foot pain with localization to both great toes. He had difficulty wearing foot gear and was unable to pass the Army Physical Fitness Test (APFT). He was found medically unfit for enlistment under the existing medical fitness standards. The opinion of the evaluating physician was the condition existed prior to service. The EPSBD recommended separation. The applicant concurred with the EPSBD determination and requested to be discharged from the Army without delay. 4. On 12 September 1997, the applicant submitted his acknowledgement of the commander’s intent to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-11 for the convenience of the government. He elected not to make a statement in his own behalf nor requested consulting counsel. In the same document, counsel stated that he had advised the applicant of the basis for his pending separation, its effects, the rights available to him, and waiver of his rights. 5. On 16 September 1997, the approval authority approved the separation and directed his term of service be uncharacterized and that he not be transferred to the Individual Ready Reserve (IRR). 6. On 26 September 1997, the applicant was discharged from the Army due to failure to meet procurement medical fitness standards. His DD Form 214 shows he had completed 4 months and 12 days of creditable active duty service, which was uncharacterized. He was given a separation program designator (SPD) code of JFW and a reentry (RE) code 3. 7. In the processing of this case, a medical advisory opinion was obtained from the Army Review Boards Agency (ARBA) Senior Medical Advisor. The medical doctor opined the applicant did not meet medical accession standards for symptomatic bilateral hallux valgus (greater than 30 degrees; normal less than 15). His medical conditions were duly considered during his medical separation processing. No evidence was found showing he had a medical disability or condition which would support a change in the character or reason of his discharge. 8. A copy of the advisory opinion was sent to the applicant on 20 December 2016 for his information and opportunity to respond. No response was received. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 5-11 provides 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 or active duty training or initial entry training will 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 the military service had it been detected at that time, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. 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. 2. Entry level status is defined as the first 180 days of continuous active duty. It further states that the character of service for members separated under the provisions of chapter 11 will be uncharacterized. For the purposes of characterization of service, the Soldier's status is determined by the date of notification as to the initiation of separation proceedings. 3. Army Regulation 601-210 (Regular Army and Army Reserve enlistment Program) prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the Army Reserve. Chapter 3 prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE Codes including Regular Army RE codes. RE 3 applies to persons separated from their last period of service with a waivable disqualification. That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect. 4. Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code of JFW was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of AR 635-200, paragraph 5-11, for failure to meet procurement medical fitness standards. Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) established RE code 3 as the proper RE code to assign to Soldiers for this reason. DISCUSSION: 1. The records clearly show the applicant underwent a medical examination for bilateral foot pain during his initial training and he was processed through an EPSBD. He concurred with the EPSBD proceedings which recommended his separation due to a condition that existed prior to service. The EPSBD did not recommend a medical separation with honor because his condition existed prior to service. He requested discharge without delay. 2. The separation action was initiated while he was in an entry level status prior to his completing 180 days of continuous active military service. As a result, his service was appropriately described as "uncharacterized." 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 his record. 3. The record shows his separation processing was accomplished in accordance with the applicable regulations. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 4. 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. 5. The SPD code JFW and RE code 3, establishing his enlistment/reenlistment ineligibility with waiver, was correctly entered on his separation document in accordance with governing regulations. There is no apparent basis for removal or waiver of the applicant’s disqualification that established the basis for his separation. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR201500008827 Enclosure 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001667 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2