ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 19 February 2019 DOCKET NUMBER: AR20160013213 APPLICANT REQUESTS: in effect, correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show her narrative reason for separation as medically discharged. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * DA Forms 705 (Army Physical Fitness Test (APFT) Scorecard), dated 2 April 2009, 1 July 2009, 8 December 2009, and 19 January 2010 * DA Forms 3349 (Physical Profile), dated 1 July 2009, 31 August 2009, and 30 September 2009 * Memorandum, Alpha Company, 344th Military Intelligence Battalion, Goodfellow Air Force Base, TX, undated, subject: Separation under Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13, Separation for Unsatisfactory Performance, (Applicant) * Memorandum, Alpha Company, 344th Military Intelligence Battalion, Goodfellow Air Force Base, TX, undated, subject: Commander's Report – Proposed Separation under Army Regulation 635-200, Chapter 13, Separation for Unsatisfactory Performance, (Applicant) * DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members), dated 23 February 2010 * Physical Therapy Prescription, Center for Advanced Orthopedics, dated 9 October 2015 * Radiographic Image, dated 9 October 2015 * Letter, Major S____ L. H____, dated 10 March 2016 * Letter, A____ J. T____, dated 4 April 2016 * Letter, Army Review Boards Agency, dated 27 July 2016 * Extract of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 13 (Separation for Unsatisfactory Performance) ? FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: * she joined the U.S. Army in April 2009 and fractured her right inferior pubic ramus (pelvis) on an obstacle course during basic training * she completed basic training and went to Air Force Base * she was given an honorable discharge for APFT failure and not given an opportunity to ease back into training * she understood she could rejoin the military after 2 years * she was informed by the U.S. Navy that her reentry eligibility (RE) code shown on her DD Form 214 was considered "medical" and she very possibly would never be able to reenter the military * she has collected, filed, and kept all supporting documentation from her service in the Army, as well as civilian medical documentation in relation to her injury * she has struggled to find a position in the intelligence community since her discharge * she was not unable to pass the APFT due to lack of motivation * she was unable to pass the APFT because she was still assigned a limiting physical profile rating or in the recovery period during testing * her body has not been the same since the injury in 2009 * she is still unable to run or walk without a limp or pain 3. She enlisted in the Regular Army on 8 April 2009. 4. On 1 July 2009, she was assigned a temporary 28-day limiting physical profile rating of "2" under the lower extremities factor. The medical profiling officer indicated she could not perform the APFT 2-mile run or alternate walking events during this period. 5. On 31 August 2009, she was assigned a temporary 30-day limiting physical profile rating of "2" under the lower extremities factor. The medical profiling officer indicated she could not perform the APFT 2-mile run or alternate walking, swimming, or bicycling events during this period. 6. She was notified in writing by her company commander on an unspecified date of his intention to initiate separation action for unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13. The commander stated his reason as her for failure to pass the APFT on numerous occasions due to her lack of motivation and effort. She was advised that she had the right to consult with counsel and submit written statements in her behalf. 7. On an unspecified date, her company recommended her separation in writing for failure to pass the APFT on numerous occasions due to her lack of motivation and effort. Her complete separation packet is not available for review. 8. Her DD Form 214 shows she was discharged on 25 February 2010 under the provisions of Army Regulation 635-200, chapter 13. She completed 10 months and 18 days of total active service. She was assigned separation program designator (SPD) code JHJ (Unsatisfactory Participation) and RE code 3. RE code 3 applies to a person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. Her service was characterized as honorable. 9. She provided a Physical Therapy Prescription, dated 9 October 2015, showing a diagnosis of right hip instability. 10. She provided a letter from SXXXX , dated 10 March 2016, stating she has known the applicant as a friend and as a former nanny. She personally can attest to the applicant's intelligence, tenacity, discipline, and fortitude. The applicant is a consummate team player. The applicant demonstrates the ability to work independently and produces outstanding results. 11. She provided a letter from AXXXXX, dated 4 April 2016, stating the applicant would be eligible for employment in the intelligence operations field where quick thinking, great organizational skills, analysis, motivation, and professionalism are required. He has known the applicant for over 6 years and says she is very detail-oriented and thorough when it comes to handling sensitive documents and performing analysis. The applicant is great at managing her time and incredibly organized, persistent without being annoying, and, above all, she gets results for any task. 12. The Army Review Boards Agency Senior Medical Advisor rendered a medical advisory opinion, dated 12 June 2018, wherein he stated: * the applicant's medical conditions were duly considered during medical separation processing * a review of the available documentation found no evidence of a medical disability for condition that would support a change to the character or reason for the discharge in this case * the applicant's right groin/hip pain symptoms resolved sufficiently by the end of basic combat training and she successfully completed the required APFT and a 15-kilometer road march * the applicant progressed to advanced individual training with initial recurrence of her symptoms with physical training * she was assigned a temporary limiting physical profile rating until her symptoms resolved * she subsequently did not pass the running event of the APFT 13. The applicant was provided a copy of this advisory opinion on 2 July 2018 and given an opportunity to comment and/or submit a rebuttal. 14. She responded and stated: * she noted the civilian documentation she provided was not indicated as reviewed by the Army Review Boards Agency * she was granted service-connected disability by the Department of Veterans Affairs * she completed the APFT to advance from basic training to advanced individual training prior to the medical recommendation to return to duty * she was not made aware of the qualification for a "walking profile [alternate APFT walking event]" * there is no record showing she did extra physical training with her platoon sergeant to specifically focus on her weak areas * the lack of ethics during her separation processing under the provisions of chapter 13 has left lasting ramifications in most areas of her life * a lack of motivation was clearly not the reason she was not able to pass the running event of her APFT * she deserves a medical discharge 15. She also provided her Department of Veterans Affairs Rating Decision, dated 27 March 2018, showing she was granted service connection for right hip strain status post-fracture of the inferior right pubic ramas with an evaluation of 10 percent and left knee tendonitis as secondary to right hip strain status post-fracture of the inferior right pubic ramas with an evaluation of 10 percent effective 6 July 2017. BOARD DISCUSSION: After review of the application and all evidence, to include the medical advisory and the response from the applicant, the Board determined there is insufficient evidence to grant consideration for a medical discharge. The Board found that based upon the applicant having temporary profiles that were never made permanent and the APFT tests given to her took into account recovery from those temporary profiles, the separation action taken by the command at the time of discharge was appropriate. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 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. SIGNATURE: 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. ? REFERENCES: 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 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. 2. Army Regulation 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. 3. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes eligibility criteria governing the enlistment of persons, with or without prior service, into the Regular Army, the U.S. Army Reserve, and the Army National Guard. Table 3-1 (U.S. Army reentry eligibility codes) shows a RE-3 code applies to a person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. For eligibility for reentry a waiver is required. 4. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, prescribed the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The appendix shows SPD code JHJ represents unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 11 (Entry-Level Performance and Conduct) set policy and provided guidance for the separation of Soldiers because of unsatisfactory performance and/or conduct while in entry-level status. Paragraph 11-3c (Separation Policy) provided nothing in this chapter precludes separation under another provision of this regulation when such separation is warranted. However, if separation of a Soldier in entry-level status is warranted by reason of unsatisfactory performance, separation processing will be accomplished under this chapter. As an exception, Soldiers with less than 181 days of continuous active service who have completed initial entry training, been awarded an military occupational specialty, and been assigned to a follow-on unit for duty will be processed for discharge under the appropriate chapter. b. Chapter 13 (Separation for Unsatisfactory Performance) provided a Soldier may be separated per this chapter when it is determined that he/she is unqualified for further military service because of unsatisfactory performance. This reason will not be used if the Soldier is in entry-level status, except in paragraph 11-3c. 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. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from impairment that disqualifies him or her from further military service. The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability. Furthermore, unlike the U.S. 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. The U.S. Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career, while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. ABCMR Record of Proceedings (cont) AR20160013213 2 1