BOARD DATE: 14 November 2017 DOCKET NUMBER: AR20160004433 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: 14 November 2017 DOCKET NUMBER: AR20160004433 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. BOARD DATE: 14 November 2017 DOCKET NUMBER: AR20160004433 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 her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she was honorably discharged from service due to a service-connected disability instead of with an uncharacterized discharge. 2. The applicant states that her DD Form 214 should be changed to show she was discharged due to a service-connected disability for which she is currently receiving Department of Veterans Affairs (VA) benefits. 3. The applicant provides her DD Form 214 and a VA disability compensation letter, dated 25 January 2016. 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. On 12 August 1998, the applicant enlisted in the Regular Army. Her pre-enlistment Report of Medical History and Report of Medical Examination are not available for review in this case. 3. A DA Form 2-1 (Personnel Qualification Record) shows the applicant was assigned to Company B, 3rd Battalion, 10th Infantry, 3rd Training Brigade, Fort Leonard Wood, MO, for the completion of basic training (BT). 4. Her DA Form 4707-C (Entrance Physical Standards Board (EPSBD) Proceedings), dated 21 October 1998, contains the following information: a. History of Present Illness: Soldier is an 18-year-old female basic trainee who was able to complete her second week of BT and then, because of problems with knee pain and bilateral wrist pain, was released from training. She has been followed in occupational therapy for bilateral carpal tunnel syndrome that was aggravated with pushups. She has been followed and treated with splints as well as occupational therapy and has noted improvement in her symptoms. She also complains of persistent left knee pain, which she has had since her arrival at BT. She is unable to put weight directly onto her knee with kneeling on her left knee. This is painful with running activities. b. Physical Examination: Examination of her upper extremities reveals no atrophy of her intrinsic or thenar (ball of the thumb) or hypothenar musculature (a group of four short muscles found on the ulnar side of the palm). She has 5/5 pinch and opposition with her thumb and small finger. She has an equivocal Tinel’s (a way to detect irritated nerves). Her two-point is documented in occupational therapy as 3 millimeter or less, which is well within normal limits. Examination of her left knee reveals a tender tibial tubercle (a large oblong elevation on the anterior aspect of the tibia) that is well localized and prominent. c. X-Ray Data: radiographs are consistent with Osgood-Schlatter’s apophysitis of her tibial tubercle (a disease which causes pain in the front lower part of the knee with inflammation of the patellar ligament.) d. Diagnosis: (1) bilateral carpal tunnel syndrome, traumatic, resolving, and (2) left knee Osgood-Schlatter’s disease, existed prior to service (EPTS). e. Recommendation: At this time, the Soldier has a condition which is likely to preclude successful completion of training. She does not meet the requirements of Army Regulation 40-501 (Standards of Medical Fitness), paragraph 2-10c(6). f. The medical approving authority approved the findings of the board and forwarded the EPSBD to the applicant's commander for disposition. 5. On 27 October 1998, the applicant was counseled by her immediate commander who informed her of the medical findings of the EPSBD. a. The applicant acknowledged that she was informed of the medical findings. She also acknowledged she understood that legal advice of an attorney employed by the Army was available to her and that she could consult with civilian counsel at her own expense. She further acknowledged she understood she could request to be discharged from the Army without delay or request retention on active duty. After counseling, the applicant concurred with the proceedings and requested to be discharged from the Army without delay. b. The applicant's unit commander recommended the applicant be discharged. On 29 October 1998, the separation authority approved the applicant's separation from the Army. 6. On 4 November 1998, Headquarters, U.S. Army Engineering Center and Fort Leonard Wood, Fort Leonard Wood, MO, published Orders 308-0352 ordering her reassignment to the U.S. Army Transition Center for separation processing effective 5 November 1998. 7. On 5 November 1998, the applicant was discharged from active duty. Her DD Form 214 shows she was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-11. The narrative reason for separation shows "FAILURE TO MEET PROCUREMENT MEDICAL FITNESS STANDARDS" and her characterization of service was uncharacterized. She completed 2 months and 24 days (86 days) of active service. 8. The applicant provides a VA summary of her disability rating and benefits, dated 25 January 2016. The letter shows that she has a combined service-connected disability rating of 40 percent (%); however, the letter does annotate her disabilities. 9. During the process of this case, an advisory opinion was obtained from the Army Review Board Agency (ARBA) Senior Medical Advisor. He states: a. A review of the applicant’s electronic record (AHLTA) revealed no record. Her paper service treatment record was not available for review from the National Personnel Records Center (NPRC). The VA Request for Information, dated 21 June 1999, which was provided to the VA, Houston, TX, states the "enlistment physical is all that's available" on 24 February 2000. The applicant’s DA Form 201 (Military Personnel Records Jacket (MPRJ)), her available microfiche, and her Interactive Personnel Electronic Records Management System (iPERMS) were reviewed. b. A limited review of VA records through the Joint Legacy Viewer (JLV) shows six VA problems listed, including acute stress reaction, anxiety, cervical and lumbar radiculopathy and others. The applicant is VA service-connected at 40% (inflammation of all radicular nerves (left) and (right) at 20% each). c. The applicant did not meet medical accession standards for left knee (Osgood-Schlatter’s disease), which was EPTS, in accordance with Army Regulation 40-501, chapter 2 (Physical Standards for Enlistment, Appointment, and Induction), and following the provisions set forth in Army Regulation 635-200 that was applicable to her, during her time in service. d. She met medical retentions standards for bilateral carpal tunnel syndrome traumatic resolving, pes planus mild asymptomatic, and visual acuity (refractive error) in accordance with Army Regulation 40-501, and following the provisions set forth in Army Regulation 635-200 that were applicable to her, during her time in service. f. Her medical conditions were duly considered during her medical separation processing; however 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. 10. The applicant was provided with a copy of this advisory opinion for an opportunity to respond. She did not respond. REFERENCES: 1. Army Regulation 635-5-1,(Personnel Separation – Separation Program Designator (SPD) Codes), Appendix C, effective 1 October 1993, prescribes the specific authorities (regulatory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. Appendix C, states a service member who is involuntarily separated from service for "Failure to Meet Procurement Medical Fitness Standards" will receive a SPD code of "JFW." 2. Army Regulation 635-200, paragraph 5-11, states 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 six 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 (Physical Evaluation for Retention, Retirement, or Separation), 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. a. Paragraph 3-7a states 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. b. Paragraph 3-9 states an uncharacterized separation is an entry-level separation. A separation will be described as an entry-level separation if processing is initiated while a member is in entry-level status, except when characterization under other than honorable condition is authorized under the reason for separation and is warranted by the circumstances of the case or when 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. c. Entry-level status is defined as the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break in service of more than 92 days of active military service. 3. Army Regulation 635-40, dated 1 September 1990, governed the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. Paragraph 3-3a (Conditions existing before active military service) states, according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service. Manifestation of lesions or symptoms of chronic disease from date of entry on active military service (or so close to the date of entry that the disease could not have started in so short a period) will be accepted as proof that the disease existed prior to entrance into active military service. 4. Army Regulation 40-501, dated 30 August 1995, governs medical fitness standards for enlistment, induction, appointment, retention, and separation. a. Chapter 2 prescribes the medical conditions and physical defects that are causes for rejection for an appointment, enlistment, and induction into military service. b. Paragraph 2-10c(6) (Lower extremities) states a cause for rejection is osteochondritis of the tibial tuberosity (Osgood-Schlatter's disease), if symptomatic or with obvious prominence of the part and x-ray evidence of separated bone fragment. 5. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. Unlike the Army, 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 contends that her DD Form 214 should be changed to show she was discharged due to a service-connected disability with an honorable discharge. 2. According to accepted medical principles, the manifestation of a chronic disease from the date of entry into active military service (or so close to that date of entry that the disease could not have started in so short a period) is accepted as proof the disease existed prior to entrance into active military service. 3. The evidence of record shows medical authorities determined the applicant suffered from a disqualifying medical condition that existed prior to service and which was discovered shortly after reporting for active duty. The EPSBD Proceedings also found that her bilateral carpal tunnel syndrome met retentions standards, but her condition was likely to preclude a successful completion of BT. The EPSBD also noted that she did not meet the requirements of Army Regulation 40-501, paragraph 2-10c(6). Accordingly, the EPSBD recommended separation based on her unfitting condition of Osgood-Schlatter's disease. 4. The applicant was counseled and advised of her rights, and she elected a discharge from the Army without delay. Her rights were fully protected throughout the separation process, and she was separated accordingly with 2 months and 24 days of active duty service with an uncharacterized discharge. 5. A member's service is under review during the first 180 days of continuous active military service. When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant an honorable characterization. However, an honorable or general characterization may be issued only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and is approved by the Secretary of the Army. 6. In all other circumstances, an uncharacterized separation is issued regardless of the reason for separation. An uncharacterized discharge is neither positive nor negative; it is not derogatory. It simply means the Soldier did not serve on active duty long enough for her service to be rated. The characterization of services she received was in compliance with the governing regulation. 7. A medical review of the applicant’s case by the ARBA Senior Medical Advisor determined that she did not meet medical accession standards for Osgood-Schlatter’s disease at the time of her service; this condition was considered to have been an EPTS condition. He 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. 8. According, pursuant to Army Regulation, 635-200, the applicant was appropriately separated from service with an SPD code of “JFW”, for failure to meet procurement medical fitness standards.” 9. 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. The VA may award ratings because a medical condition is related to service (service-connected) and affects the individual's civilian employability. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004433 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004433 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2