IN THE CASE OF: BOARD DATE: 15 November 2017 DOCKET NUMBER: AR20160003972 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: 15 November 2017 DOCKET NUMBER: AR20160003972 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 to amend the decision of the Army Board for Correction of Military Records set forth in Docket Number AR20140002926 on 16 October 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. IN THE CASE OF: BOARD DATE: 15 November 2017 DOCKET NUMBER: AR20160003972 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 reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20140002926 on 16 October 2014. Specifically, he requests his uncharacterized discharge be upgraded to either an honorable or medical discharge. 2. The applicant states, in effect, his DD Form 214 (Certificate of Release or Discharge from Active Duty) should be corrected to show his uncharacterized discharge was an honorable and/or medical discharge. 3. The applicant provides: * DD Form 2807-1 (Report of Medical History), dated 6 June 2011 * DD Form 2808 (Report of Medical Examination), dated 6 June 2011 * DA Form 3822 (Report of Mental Status Evaluation), dated 14 November 2011 * DA Form 3081 (Periodic Medical Examination – Statement of Exemption), dated 16 November 2011 * DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings), dated 16 November 2011 * Four DA Forms 4856 (Development Counseling Form), each dated 23 November 2011 * numerous personnel and medical documents, including medical sick slip documents * DD Form 214, for the period ending 22 December 2011 * a one-page Department of Veteran Affairs (VA) Rating Decision document CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20140002926 on 16 October 2014. 2. The applicant provides a new evidence in the form of medical documents and counseling forms. These documents were not considered by the Board in its initial consideration of his request. 3. Prior to enlisting in the Regular Army, the applicant filled out a DA Form 2807-1 on 6 June 2011, wherein he acknowledged that he wore glasses, took ibuprofen for headaches, and had no previous or current medical issues or problems. A DA Form 2808, dated 6 June 2011, indicates he was given a medical examination at the Los Angeles Military Entrance Processing Station (MEPS), where a physician noted he had mild asymptomatic pes cavus (high arch in his feet) but noted he was qualified for military service. 4. The applicant enlisted in the Regular Army on 3 October 2011 and was assigned to Fort Jackson, SC for his initial entry training. 5. The applicant's DA Form 3822, dated 14 November 2011, shows the applicant self-referred to the Community Mental Health Services (CMHS) and was evaluated by a licensed medical provider. The medical provider noted that his behavior was cooperative with normal perceptions and unlikely to be impulsive with no obvious impairments. The provided noted that he could participate in administrative proceedings, can understand the difference between right and wrong, and met medical retention requirements (i.e., does not qualify for a Medical Evaluation Board (MEB)). Additionally, the provider noted: * from a behavioral health standpoint, the applicant was deemed unfit for duty due to a personality disorder or other mental condition that did not amount to a medical disability * he was diagnosed with "adjustment disorder with depressed mood" * he was pending a medical EPTS [existed prior to service] discharge; it was recommended that his command initiate the EPTS discharge * he should be removed from training 6. The applicant's records were viewed by an EPSBD. His record contains, and he provides, a DA Form 4707, dated 16 November 2011, which shows after careful consideration of his medical records, laboratory findings, and medical examination, the board found the applicant medically unfit for enlistment in accordance with current medical fitness standards and, in the opinion of the evaluating physician, the conditions were characterized as EPTS. This form shows the following entries: a. Diagnosis: Spondylolisthesis [a condition in which a bone in the spine (vertebra) slips out of position, either forwards or backwards.] b. History of EPTS Condition: Source of patient information was patient. He has been seen several times for lower back pain and hip pain. He also been seen by physical therapy. His pain was getting worse and x-ray done which revealed pars defect L5 and spondylolisthesis at L5-S1 level. He cannot finish required training. c. Findings: Lumbosacral spine exhibited tenderness on palpation. Lumbosacral spine pain was elicited by motion. d. Lab and X-Ray Results: Grade 1 L5-S1 spondylolisthesis. e. 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), chapter 2-29i. 7. The medical approving authority approved the findings of the EPSBD on 6 December 2011 and forwarded the recommended course of action to the unit commander for disposition. 8. The applicant was informed of the medical findings on 8 December 2011. He acknowledged he understood that legal advice of an attorney employed by the Army was available to him or that he could consult civilian counsel at his own expense. He also acknowledged he understood that he could request to be discharged without delay or to request retention on active duty. If retained, he could be involuntarily reclassified into another military occupational specialty based upon his medical condition. On the same date, he concurred with the proceedings and requested he be discharged from the Army without delay. 9. His immediate commander recommended his separation from the Army on 8 December 2011. The separation approving authority directed his discharge from the Army on 15 December 2011. 10. The applicant's DD Form 214 shows he was discharged on 22 December 2011, under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-11, by reason of failure to meet procurement medical fitness standards. His service was "uncharacterized" and he was issued the separation code "JFW." He completed 2 months and 20 days of net active service and was not awarded an MOS. 11. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge. The ADRB determined he was properly and equitably discharged and denied his request on 10 December 2012. 12. The applicant provides the following documentation in support of his application: a. A DA Form 3081, dated 16 November 2011, shows the applicant attested to the best of his knowledge that he underwent a medical examination that determined he needed to leave the Army because of his back. He says a week into his basic training he began feeling constant pain while training. He also felt the drill sergeants singled him out and harassed him, thereby causing him mental stress. b. A memorandum for record from the U.S. Army Trial Defense Service (TDS), Fort Jackson, SC, dated 14 December 2011, subject: Separations Election of Rights, which shows the applicant, having been afforded the opportunity to see TDS, elected not to speak with counsel or provide a statement. c. Four DA Forms 4856, each dated 23 November 2011, which show the applicant was counseled by his chain of command after being administratively flagged pending his elimination from the service and being recommended for separation under the provisions of Army Regulation 635-200, chapter 5-11. d. Numerous sick call documents that show the applicant was seen by medical personnel between 7 November and 5 December 2011 for a variety of medical conditions to include back pain, hip pain, and insomnia. A number of the sick call documents note his pending EPTS discharge. e. A one-page excerpt from the VA, dated 4 December 2015, wherein the applicant highlights and circles the word "honorable" under character of service and the form shows he received a 30 percent disability rating from the VA. 13. In connection with processing of this case, an advisory opinion was obtained on 2 May 2017 from the Army Review Boards Agency (ARBA) Senior Medical Advisor. The medical advisory opinion, in pertinent part, states: a. A review of the applicant's electronic medical record (AHLTA) revealed clinical encounters from October to December 2011. His iPERMS (Interactive Personnel Electronic Records Management System) records were also reviewed. A limited review of VA records through the JLV (Joint Legacy Viewer) revealed 31 problems/issued listed (18 VA-entered) including mood disorder, intervertebral disc disorders with radiculopathy lumbar region, and lower back pain. The applicant is VA service-connected with a 30 percent disability rating. The VA considers his Army uncharacterized service as honorable for VA purposes. b. His available record does not support a boardable medical condition at the time of his military service that warranted a separation through medical channels. c. The applicant did not meet medical procurement standards for spondylolisthesis (manifesting with back pain) in accordance with chapter 2 of Army Regulation 40-501 (Standards of Medical Fitness) and following the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), that were applicable to his era of service. d. The applicant's medical conditions were duly considered during the EPTS separation processing and a review of his 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. 14. The advisory opinion was provide to the applicant on or about 4 May 2017 to afford him the opportunity to respond to its content. He did not respond. REFERENCES: 1. Army Regulation 15-185 (ABMCR) 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. It is not an investigative body. 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 2-29i states current (or history of) spondylolisthesis (congenital or acquired) does not meet the standard. 3. 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. 4. Title 38, U.S. 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. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings. DISCUSSION: 1. The applicant requests that his uncharacterized discharge be changed to an honorable discharge or medical discharge. 2. The evidence shows the applicant was found to be medically unqualified for service while he was attending his basic training, due to a condition that was considered to have existed prior to service. Although he was allowed to enlist, it appears his condition impacted his ability to complete his initial entry training. The EPSBD Proceedings show he was evaluated by competent medical authorities and he was diagnosed with spondylolisthesis. 3. When informed of the medical findings, he concurred with the findings and requested to be discharged from the Army without delay. Additionally, after a thorough review of his medical records, the ARBA medical advisory opined that his medical condition did not meet medical procurement standards in accordance with applicable regulations and was duly considered during his separation processing. 4. The evidence of record also shows he was in an entry-level status at the time of his separation. As a result, his service was appropriately described as "uncharacterized" in accordance with governing regulations. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 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 his records. 6. An uncharacterized discharge is not meant to be a negative reflection of a Soldier's military service. It merely means the Soldier has not served on active duty long enough for his or her character of service to be rated. 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 it determines were incurred during military service and subsequently affect the individual's civilian employability. Subsequent to his discharge, the VA evaluated him and awarded him service-connected disability compensation. However, a rating by the VA does not establish error by the Army nor warrant compensable separation by the Army. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003972 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003972 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2