BOARD DATE: 11 July 2017 DOCKET NUMBER: AR20160002908 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: 11 July 2017 DOCKET NUMBER: AR20160002908 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 to amend the decision of the Army Board for Correction of Military Records set forth in Docket Number AR20130021727 on 16 September 2014. ___________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: 11 July 2017 DOCKET NUMBER: AR20160002908 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, reconsideration of his earlier request for an upgrade of his service characterization to honorable. 2. The applicant states he had a physical disability. 3. The applicant provides letters from the Department of Veterans Affairs (VA). CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130021727 on 16 September 2014. 2. Based on the applicant's claim that he has a disability (which includes behavioral health issues), his application is being reviewed under the 2014 Secretary of Defense's guidance to Military Boards for Correction of Military (BCMR)/Naval Records (NR). 3. The applicant enlisted in the Regular Army on 25 July 2001. He was assigned to Fort Knox, KY, for training. 4. The complete facts and circumstances surrounding his discharge are not available for review with this case. However, his records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) showing: a. He was discharged on 20 December 2001 under the provisions of chapter 11 (Entry Level Performance and Conduct) of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). b. He completed 4 months and 26 days of active service. c. He was assigned separation program designator code JGA. d. His service was uncharacterized. 5. On 30 August 2006, the Army Discharge Review Board (ADRB) considered his petition for a change to his character of service. The ADRB determined his discharge was proper and equitable and denied his petition. 6. On 16 September 2014, the ABCMR also considered his case but found insufficient evidence to support a change to his character of service and denied his request in Docket Number AR20130021727. 7. He provided a letter from the VA, dated 15 June 2015, stating he has a service-connected disability rated at 20-percent disabling. 8. In a letter, dated 31 March 2017, the Army Review Boards Agency staff requested him to provide his VA medical records to support his rating by the VA. The applicant did not respond. 9. The Army Review Boards Agency Senior Medical Advisor reviewed the applicant's application, personnel and medical records, then rendered an advisory opinion on 2 May 2017. a. The medical advisor, an Army physician, reviewed this case for alleged medical condition(s) that may have warranted separation through medical channels or medical condition(s) not considered during medical separation processing. b. The applicant's DD Form 214 shows an uncharacterized discharge based on his entry-level performance and conduct (narrative reason for separation) per AR 635-200, chapter 11. c. The medical review included his initial enlistment medical examination documented on a Standard Form 88 (Report of Medical Examination), dated 10 May 2000, with his clinical evaluation unremarkable. The examination noted he had moderate, asymptomatic pes cavus (abnormally high medial arch). He was assigned a permanent physical profile rating with no limitations or restrictions. His physical profile is shown as "1111111" and he was qualified for service. d. A Standard Form 86 (Security Clearance Application), dated 12 July 2001, was also unremarkable as there were no mental health issues noted during the last 7 years prior to his entry into the Army. e. The applicant's Service Treatment Record (STR) was not available for review from the National Personnel Records Center at the National Archives and Records Administration. The applicant's Interactive Personnel Electronic Records Management System records were reviewed. His era of service was from 25 July 2001 thru 20 December 2001. f. The following medical notes were provided by the applicant and are also filed in ABCMR Docket Number AR20050015601. (These medical records are attached to this case file and are available to this Board.) (1) He had magnetic resonance imaging (MRI) of his left knee on 2 April 2004 – focal linear as well as ill-defined areas of bone marrow edema within the mid aspect of the patella with an associated focal area of medial facet cartilage denuding and heterogeneity; these findings are highly suspicious for a patellar contusion with a small fracture. (2) A medical note from the Montefiore Medical Center, dated 17 May 2004, for evaluation and treatment of left knee pain after MRI and referral from his primary physician with 1+ varus instability, bilaterally symmetric and physiologic. Tenderness to palpation at the medial patellar facet and mild tenderness to lateral patellar facet only. Anterior – posterior/lateral/merchant radiographs reveal slight medial patellar facet osseous flattening with small defect. MRI reveals osteochondral defect of the medial patellar facet, with associated subchondral osseous changes. Impression: Left knee medial patellar facet osteochondral defect. (3) Another office note, dated 3 January 2005, for follow up with tenderness to palpation medial patellar facet; having difficulty with activities of daily living including his job activities as a home health aide and having pain with patient transfers, optimized left lower extremity motor strength, elected to undergo left knee arthroscopy, debridement of the patellar chondral surface and well as the possible micro fracture. Additional office notes, dated 11 April 2005, for first Hyalgan injection of the left knee; on 25 April 2005, for third Hyalgan injection of the left knee; and on 23 May 2005, with left knee doing well status post Hyalgan injections with full active range of motion, motor strength, and no tenderness to palpation with negative provocative tests. New problem – right knee pain. (4) An MRI of the right knee on 31 May 2005 – findings consistent with early arthritic disease with a small suprapatellar joint effusion; findings consistent with a tear of the posterior horn of the medial meniscus; infrapatellar bursitis and a ganglion cyst posterior to the posterior cruciate ligament; chondromalacia of the medial facet of the patella with a prominent bone bruise of the patella. An office note, dated 6 June 2005, for follow-up and review of MRI hard copies reviewed which revealed advanced chondrosis of the medial patellar facet, a patellar osseous contusion, as well as posterior horn medial meniscal tear. (5) Examination with positive McMurray's and Steinmann's test with tenderness at the aforementioned areas. Additional office notes, dated 8 July 2005, for follow up, has no concept of medical clearance; and dated 22 August 2005 after right knee arthroscopy on 18 August 2005. An additional office note, dated 26 August 2005, after right knee arthroscopy; at this point his range of motion is 0-60 degrees and he has not been doing his exercises as prescribed. He was referred to physical therapy to ensure he regains his range of motion and can return to work on 19 September 2005 without restrictions; sutures removed, benzoin and Steri-Strips were placed. g. His VA statement of benefits letter, dated 15 June 2015, stating he has a service-connected disability rating of 20-percent. A limited review of VA records through the Joint Legacy Viewer with 18 VA-entered problems noted, including obstructive sleep apnea, asthma, low back pain, knee pain, foot joint pain, myositis, anemia, gout, obesity, and others. The applicant is VA service connected at 20 percent overall (limited flexion of knee times two at 10 percent each). (1) There is past history of right knee arthroscopy, uvulectomy of obstructive sleep apnea, and complicated esophagogastroduodenoscopy requiring intubation for airway protection in April 2016. (2) Left and right knee x-ray series (7 March 2017) – mild joint space narrowing within medial compartment of the right knee. Mild joint space narrowing within medical compartment of the left knee possible small loose body within left knee join, vaguely seen retrospectively on prior study; no fracture or dislocation is seen. Impression: mild bilateral degenerative changes. h. In an effort to determine his medical condition, a series of questions arise based on the medical review: (1) Does the available record reasonably support a diagnosis of post-traumatic stress disorder (PTSD) or another boardable behavioral health condition(s) existed at the time of the applicant's military service? No. (2) Did his condition(s) fail medical retention standards in accordance with AR 40-501 (Standards of Medical Fitness), warranting a separation through medical channels? No and not applicable. i. The applicant met medical retention standards for pes cavus and for other physical, medical, and/or behavioral conditions in accordance with chapter 3 of AR 40-501 and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Separation, or Retirement) that were applicable to the applicant's era of service. j. The applicant's medical conditions were duly considered during his separation processing. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. The applicant's paper STR was not available for review from the National Personnel Records Center at National Archives and Records Administration. If the applicant's STR becomes available, another review could be conducted which may update/amend this medical advisory. 10. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal. He did not respond. REFERENCES: 1. AR 635-40 establishes the Army disability system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in AR 40-501. Paragraph 3-1 provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating. To ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in AR 40-501, chapter 3. 2. AR 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). It outlines medical conditions which may render an individual unfit or which may preclude enlistment and notes that both personality and adjustment disorders will be dealt with through administrative and not medical channels. a. Paragraph 3-32.1 stated an individual with a history of or current manifestations of personality disorder effecting duty did not render an individual unfit because of physical disability. b. Paragraph 3-32.2 stated adjustment disorders (transient, situational maladjustments due to acute or special stress) also did not render an individual unfit because of physical disability. Those conditions at the time rendered an individual administratively unfit for continued military service. Such conditions would be dealt with through administrative channels, including process in accordance with procedures outlined in AR 635-200. c. Chapter 7 prescribes a system for classifying individuals according to functional abilities. The physical profile serial system is based primarily upon the function of body systems and their relation to military duties. In developing the system, the functions have been considered under six factors designated as "P–U–L–H–E–S": "P" = physical capacity or stamina; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric. Four numerical designations are assigned for evaluating the individual's functional capacity in each of the six factors. A numerical designation of "1" indicates a high level of fitness, "2" indicates some activity limitations are warranted, "3" reflects significant limitations, and "4" reflects one or more medical conditions of such a severity that performance of military duties must be drastically limited. Physical profile ratings can be either permanent or temporary.) 3. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 of the version in effect at the time stated a separation would be described as an entry-level separation with uncharacterized service if processing is initiated while a Soldier is in entry-level status, except in the following circumstances: (1) when characterization as under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case or (2) the Secretary of the Army, on a case-by-case basis, determines that characterization of service as 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 obligation, convenience of the Government and Secretarial plenary authority. (3) For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty. b. Chapter 11 sets policy and provides guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in an entry-level status. It states when separation of a member in 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, the member normally will be separated per this chapter. This separation policy applies to enlisted members of the Regular Army who have completed no more than 180 days active duty on their current enlistment by the date of separation and have demonstrated they are not qualified for retention for one or more of the following reasons: * cannot or will not adapt socially or emotionally to military life * cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline * have demonstrated character and behavior characteristics not compatible with satisfactory continued service * failed to respond to counseling c. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. d. A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. 4. On 3 September 2014, the Secretary of Defense directed the Service DRBs and Service Boards for BCM/NRs to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicants' service. 5. 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, 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 physically unfit 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. 6. AR 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. 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. DISCUSSION: 1. The complete facts and circumstances surrounding his discharge are not available for review; however, his records contain a DD Form 214 showing he was discharged on 20 December 2001 under the provisions of chapter 11 of AR 635-200 due to entry level performance and conduct. He completed 4 months and 26 days (146 days) of active service during this period. His service was uncharacterized. 2. In the absence of evidence to the contrary, it is presumed that the applicant was unable to adapt to military life. He appears to have lacked the ability to successfully complete training and become a productive Soldier. Accordingly, his immediate commander initiated separation action against him. All requirements of law and regulation were presumably met and the rights of the applicant were also presumably fully protected throughout the separation process. 3. By regulation, a separation is described as an entry-level separation if processing is initiated while a member is in an entry-level status. The exceptions are when the characterization of under other than honorable condition is authorized or when the Secretary of the Army, on a case-by-case basis, determines that an honorable discharge is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. 4. During the first 180 days of continuous active military service, a member's service is under review. 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 (misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial). 5. In order to be separated for disability, the Army has a process that begins with entry into the Disability Evaluation System. Referral to this system requires a designation of unfitness before an individual can be separated from the military because of an injury or medical condition. In the applicant's case, there is no evidence to show he had: * a permanent physical profile rating * a diagnosis that a medical condition failed medical retention standards * a diagnosis of a disabling condition that rendered him unable to perform the duties required of his military occupational specialty or former grade * a medical examination that warranted his entry into the disability evaluation system 6. An Army physician reviewed the applicant's medical records and evidence finding no medical condition(s), including behavioral health condition(s), warranting entry into the physical disability evaluation system. 7. The VA evaluates a member throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must find that a Solider is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002908 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002908 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2