BOARD DATE: 24 April 2018 DOCKET NUMBER: AR20160007326 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 24 April 2018 DOCKET NUMBER: AR20160007326 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) as follows: * change the uncharacterized separation to honorable or general * change the narrative reason for separation 2. The applicant states he incurred 3rd degree acromioclavicular (AC) joint separation (the AC joint is the junction between the acromion (part of the scapula that forms the highest point of the shoulder) and the clavicle). He received two surgeries following his injury and he is currently 100 percent totally and permanently disabled. He was hurting during training due to no fault of his own. 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 U.S. Army Reserve on 27 November 1996. He entered active duty for training (ADT) on 29 January 1997. He completed basic combat training (BCT) at Fort Jackson, SC. 3. Following completion of BCT, he was reassigned on Fort Jackson to the 187th Ordnance Battalion, 4th Training Brigade, to complete advanced individual training (AIT) in military occupational specialty 63B (Heavy Vehicle Driver). 4. On 12 April 1997, he injured his shoulder while participating in physical training. The physical training session included sprints. The start and finish lines were marked by poly pads. There was low visibility, and while he was running sprints, he tripped over the poly pad and fell on his shoulder. 5. His record contains a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 11 June 1997, that shows he was examined at Moncrief Army Community Hospital and issued a physical profile. 6. His service record also includes three memoranda, all dated 10 June 1997 and authored by the same master sergeant (MSG) identified as Reserve Component Liaison, addressed to the applicant's training unit, parent unit, and higher headquarters. These memoranda essentially read that: * the applicant was a non-graduate of MOS 63B due to inability to take the final Army Physical Fitness Test (APFT); he was on an extended physical profile and had not passed the APFT * the applicant was being released to his parent unit and he was given instructions pertinent to completion of the APFT * the unit commander must provide the applicant with recovery time, then administer the APFT and personally certify completion 7. He was honorably released from active duty on 13 June 1997. His DD Form 214 shows he completed 4 months and 15 days of active service. It also shows the following entries: * the authority for his separation was paragraph 5-11 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) and the associated Separation Code was “LFW” * the narrative reason for separation was "failure to meet procurement medical standards" 8. The applicant was ultimately discharged from the U.S. Army Reserve on 1 June 1998 with an "other than honorable" type of discharge, in accordance with paragraph 7-11(c)(1), Army Regulation 135-178 (Army National Guard and Army Reserve - Separation of Enlisted Personnel). 9. On 8 January 1999, the Army Discharge Review Board (ADRB) reviewed his discharge processing and determined, from an equity standpoint, the characterization of service upon discharge from the U.S. Army Reserve should be amended to read "general, under honorable conditions." 10. On 13 April 1999, the applicant's U.S. Army Reserve discharge orders were accordingly amended to reflect "general (under honorable conditions)" instead of "other than honorable." 11. The Army Review Boards Agency Senior Medical Advisor reviewed the applicant's records for any alleged medical condition(s) that warranted separation through medical channels or medical condition(s) that were not considered during medical separation processing. He stated: a. The available record does not reasonably support post-traumatic stress disorder (PTSD) or another boardable behavioral health condition(s) existed at the time of the applicant's military service. b. The applicant’s condition(s) did not fail medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), warranting a separation through medical channels. c. The applicant met medical retention standards for history of right shoulder Grade Ill AC separation and other physical, medical, and/or behavioral conditions in accordance with chapter 3, Army Regulation 40-501, and following the provisions set forth in Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, Separation) that were applicable to the applicant's era of service. d. The applicant's medical conditions were duly considered during 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 for the discharge in this case. e. Consideration may be given to a different narrative reason for separation. For example, "condition, not a disability" would reflect his physical condition (not warranting disability evaluation separation processing) more precisely than the inaccurate failure to meet procurement standards (which he did not have). 12. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal or additional comments. He did not respond. REFERENCES: 1. Army Regulation 635-200, in effect at the time (June 1996), describes the different types of characterization of service. a. Chapter 3 of the version in effect at the time stated a 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: (1) When characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case. Additionally, the Secretary of the Army, on a case- by-case basis, may determines that characterization of service as honorable is 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. (2) For Regular Army Soldiers, entry level status is the first 180 days of continuous active duty. For ARNG and USAR Soldiers, the entry level status begins upon enlistment in the ARNG or USAR. For Soldiers ordered to initial active duty training (IADT) for one continuous period, it terminates 180 days after beginning training. b. 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 would be separated. A medical proceeding conducted by an Entrance Physical Standard Board, 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 the time of enlistment, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501. c. Paragraph 5-17 provides for other designated physical or mental conditions. Commanders may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability (Army Regulation 635–40) and excluding conditions appropriate for separation processing under paragraph 5–11 or 5–13 that potentially interfere with assignment to or performance of duty. Such conditions include a variety of conditions described in Army Regulation 40-501. 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. Chapter 3 provides for the physical standards for retention. 3. Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, U. S. Code (USC) , Chapter 61, (10 USC 61). It 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. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. Soldiers are referred into the PDES when it is determined that they did not meet physical standards for enlistment, appointment and/or induction in accordance with chapter 2 of Army Regulation 40-501, or they no longer meet medical retention standards in accordance with chapter 3, Army Regulation 40-501. 4. Army Regulation 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 LFW is the correct code for Soldiers separating under the provisions of Army Regulation 635-200, paragraph 5-11, due to failure to meet procurement medical fitness standards and JFV is the correct code for Soldiers separating under the provisions of Army Regulation 635-200, paragraph 5-17, due to “physical condition, not a disability.” DISCUSSION: 1. With respect to the character of service: a. The applicant entered active duty on 29 January 1997 and he was released from active duty on 13 June 1997. He completed 4 months and 15 days (135 days) of active service during this period and he was not awarded an MOS. His active duty service was uncharacterized. b. The regulation describes separation 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 an honorable discharge is warranted by the presence of unusual circumstances involving personal conduct and performance of duty. b. 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. c. An uncharacterized discharge is neither positive nor negative; it is not "derogatory." Uncharacterized service 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/her character of service to be rated as honorable or otherwise. The applicant received the correct characterization of service as prescribed by regulation. 2. With respect to the narrative reason for separation: a. The applicant's DD Form 214 lists the narrative reason for separation as "failure to meet procurement medical fitness standards." The medical review of the available documentation found no evidence of a medical disability or condition that would support a change to the character for the separation in this case. A need for PDES processing was not indicated in this case. b. The medical advisor noted the reason for discharge "failure to meet procurement medical fitness standards" is neither accurate nor precise. The applicant met procurement medical fitness standards (AR 40-501) based on successful completion of BCT and start of AIT. He had a training injury preventing successful completion of the final APFT necessary for AIT graduation and MOS qualification. c. The medical advisor notes that "condition, not a disability" would more accurately reflect the circumstances leading to his release from active duty. BOARDED ON 24 April 2018 NUMBER: AR20160007326 BOARD DETERMINATION/RECOMMENDATION:. 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant's DD Form 214 as follows: • delete from item.25 the entry "AR 635-200, Para 5-11" and add the entry "AR 635-200, Para 5-17" • delete from item 28 (Narrative Reason for Separation) the entry "failure to meet procurement medical fitness standards" and add the entry "condition - not a disability" • delete from item 26 (Separation Code) the entry "LFW" and add the entry "JFV" 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to changing the "uncharacterized" character . 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160007326 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160007326 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2