BOARD DATE: 1 March 2018 DOCKET NUMBER: AR20160005737 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. 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: 1 March 2018 DOCKET NUMBER: AR20160005737 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING SH :CAR :SLY DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 1 March 2018 DOCKET NUMBER: AR20160005737 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 the characterization of service he received be changed from "Entry Level Status" to "General, Under Honorable Conditions." 2. The applicant states the discharge papers he received at the time he was separated state "honorable under medical conditions." The DD Form 214 (Certificate of Release or Discharge from Active Duty) he received just states "Entry Level Status." He wants it to reflect what he was told when he was separated. He is not looking for benefits. 3. The applicant provides no additional evidence. 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 7 July 1986. He was assigned to Fort McClellan, AL, for completion of training. Shortly after entering active duty, he began complaining of vision problems. 3. His DA Form 4707 (Entrance Physical Standard Board (EPSBD) Proceedings) show he was evaluated at the U.S. Army Medical Department Activity on 10 July 1986. It also shows: a. Dr. Do__ examined him and recorded the following findings: visual acuity of the right eye with +0.75 sphere, -1.00 cylinder, axis 085 was 20/40; and visual acuity of the left eye with +0.25 sphere, -0.50 cylinder, axis 110 was 20/40. He had acquired retina change secondary to trauma 4 months earlier. b. His diagnosis was "Macula changes, secondary to trauma, existed prior to service (EPTS) and not service aggravated (unfit under the provisions of Army Regulation (AR) 40-501 (Standards of Medical Fitness), chapter 2, paragraph 2-12(e)(2)" and "Late effect of injury sustained EPTS." c. The medical examiner issued the applicant a permanent physical profile with no duty where the safety of the individual or others depends upon good vision in this individual. The recommendation was the applicant be separated under the provisions of AR 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-11. d. Two military doctors in General Surgery and Orthopedic Service reviewed the applicant's EPSBD Proceedings as they pertained to his defective vision. Additionally, on 16 July 1986, the medical approving authority approved the findings shown on the applicant’s DA Form 4707 described above. 4. On 16 July 1986, the applicant's EPSBD Proceedings were forwarded to the applicant's unit for appropriate action in accordance with paragraph 5-11 of AR 635-200. 5. On 16 July 1986, the applicant acknowledged that he was informed of the medical findings. He also acknowledged he understood that legal advice of an attorney employed by the Army was available to him and that he could consult with civilian counsel at his own expense. He further acknowledged he understood he could request a 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. 6. On 17 July 1986, the unit commander recommended approval of the applicant's request for discharge. 7. On 22 July 1986, the discharge authority approved the applicant's request for separation under the provisions of AR 635-200, paragraph 5-11, by reason of failure to meet procurement medical fitness standards and ordered the applicant receive an entry level separation (uncharacterized). 8. On 24 July 1986, the applicant was accordingly discharged. His DD Form 214 shows he was discharged under the provisions of AR 635-200, paragraph 5-11, after having completed 18 days of active service. The narrative reason for separation was "did not meet procurement medical fitness standards - no disability" and his service was uncharacterized (entry level status). It also shows in: * Item 26 (Separation Code) – JFT * Item 27 (Reentry (RE) Code) – 3 9. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge processing within that board's 15-year statute of limitations. REFERENCES: 1. AR 635-200 sets forth the basic authority for separation of enlisted personnel. Paragraph 5-11 specifically provides that Soldiers who are not medically qualified under procurement medical fitness standards when accepted for enlistment, or who became medically disqualified under these standards prior to entry on active duty, active duty for training, or initial entry training will be separated. A medical proceeding conducted by an EPSBD, 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, the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at the time of enlistment, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of AR 40-501, chapter 3. The characterization of service for Soldiers separated under this provision will normally be honorable, but will be uncharacterized if the Soldier has not completed more than 180 days of creditable continuous active duty service prior to the initiation of separation action. 2. Chapter 3 of the version of AR 635-200 in effect at the time stated a the separation will be described as an entry level separation with service uncharacterized if processing is initiated while a Soldier is in entry level status, except in the following circumstances: a. When characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case. b. 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. c. For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break of more than 92 days of active military service. d. Paragraph 3-7a, provides that 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. e. Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. AR 635-5-1 (Separation Program Designator (SPD) Codes) states SPD codes are three-character alphabetic combinations that identify reasons for and types of separation from active duty. The SPD code JFT is the correct code for Soldiers separating under the provisions of AR 635-200, paragraph 5-11, by reason of failure to meet procurement medical fitness standards. 4. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. It states that 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. Examples are manifestation of lesions or symptoms of chronic disease from date of entry on active military service (or so close to that 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. 5. AR 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation. Chapter 2 provides the physical standards for enlistment/induction. DISCUSSION: 1. The applicant contends the reason for his separation should have been "honorable under medical conditions" and his discharge should be changed from "entry level status" to "general, under honorable conditions." 2. With respect to the "Entry Level Status": a. The evidence of record shows prior to his entry on active duty, the applicant had eye-related trauma. Shortly after his entry on active duty, he was medically evaluated due to defective vision. The EPSBD proceedings clearly established that he suffered from a disqualifying medical EPTS condition. Consequently, his records were evaluated by an EPSBD. He concurred with the ESPBD’s findings and requested immediate discharge. b. According to accepted medical principles, the manifestation of a chronic disease from date of entry into active 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 or medical defect existed prior to entrance into active military service. c. Because this condition was identified within his first 180 days of service, his discharge was appropriately characterized as an entry-level characterization of service (uncharacterized). All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. d. His narrative reason for separation was assigned based on the fact that he was separated under the provisions of paragraph 5-11 of AR 635-200 due to his EPTS condition that resulted in his failing medical procurement standards. Absent the pre-existing medical condition, there was no fundamental reason to consider his records by an EPSBD. The underlying reason for his EPSBD was his EPTS condition. The only valid narrative reason for separation permitted under that paragraph is "did not meet procurement medical fitness standards, no disability," which is correctly shown on his DD Form 214. 2. With respect to the characterization of service: a. 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 an under other than honorable conditions discharge. An honorable characterization may be given only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and the characterization must be approved by the Secretary of the Army. A general discharge is not authorized with an entry level separation. b. The entry-level separation (uncharacterized) is given regardless of the reason for separation. This uncharacterized service is neither positive nor negative; it is not "derogatory." It simply means the Soldier did not serve long enough to qualify for a specified characterization of service. The applicant received the appropriate character of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160005737 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005737 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2