ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  17 July 2019

	DOCKET NUMBER:  AR20160016953


APPLICANT REQUESTS: 

* To change her Narrative Reason for Separation 
* Change her characterization of service to honorable (DD Form 214 already shows honorable)

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States)
* Department of Veterans Affairs (VA) Rating Decision, and Award Information

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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, when she was discharged, she was given the option of taking and passing the Army Physical Fitness Test (APFT) with an undiagnosed injury or to accept a chapter 13 for discharge for unsatisfactory performance.  She states, she was denied the option for a medical evaluation board (MEB).  She has current documentation that has been reviewed that states injuries and diagnosis obtained during her time of service and should have been addressed or noted before discharge.

3.  The applicant provides, VA Rating Decision, and Award Information, dated 
9 September 2015, which states she receives a monthly entitlement of $976.13, which started on 1 March 2015, and that she is service connected for:

* Fibromyalgia (40%)
* lumbar strain (10%)
* left hip labrum tear (10%)
* left hip limitation of flexion & internal rotation (0%)
* scar residual of surgery (0%)

4.  A review of her service records shows:

	a.  She enlisted on 5 January 2011 in to the Regular Army (RA).

	b.. On 10 November 2011, her immediate commander notified her that action was being initiated to separate her under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13 (Separation for Unsatisfactory Performance) due to failure of achieving minimal basic physical fitness standards in accordance with (IAW) Training and Doctrine Command (TRADOC) Regulation 350-6 (Training - Enlisted Initial Entry Training Policies and Administration).

	c.  The applicant acknowledged the commander’s intent to separate her under the provisions of AR 635-200, chapter 13 on 16 November 2011, for unsatisfactory performance.

	d.  She consulted with legal counsel on 16 November 2011, waived consulting with a counsel and acknowledged that:

* she has been advised by the commander of the basis 
* she may expect to encounter substantial prejudice in civilian life if issued a general under other than honorable conditions discharge

	e.  Subsequent to the applicant's acknowledgement, the immediate commander formally initiated separation action against the applicant under the provisions of 
AR 635-200, chapter 13, due to failure of achieving minimal basic physical fitness standards IAW TRADOC Regulation 350-6.

	f.  On 23 November 2011, following a legal review for legal sufficiency, the separation authority approved the recommendation for separation under the provisions of  AR 635-200, chapter 13, for failure of achieving minimal basic physical fitness standards IAW TRADOC Regulation 350-6 and ordered an honorable issued.

	g.  On 30 November 2011, the applicant was discharged from active duty under the provisions of AR 635-200, Chapter 13 with an honorable characterization of service.  She completed 10 months, and 26 days of active duty service without successfully completing initial entry training to be awarded a military occupational specialty.  It also shows in:

* item 23 (Type of Separation), Discharge
* item 24 (Character of Service), Honorable
* item 25 (Separation Authority), Army Regulation 635-200, Chapter 13
* item 28 (Narrative Reason for Separation), Unsatisfactory Performance

5.  On 10 May 2019, the Army Review Boards Agency medical advisor/ psychologist reviewed the applicant's case and rendered an advisory opinion and opined:

     a.  She frequently visited military treatments facilities beginning 5 days after her enlistment for numerous medical conditions through 14 November 2011:

* 10 January 2011 – Diagnosed with impetigo, anemia and feared medical condition, and generalized pain constantly
* 24 January 2011 – reported abuse as a child by father; cleared psychiatrically to return to her unit
* 31 January 201 – right elbow pain and shortness of breath, anxiety
* 8 February 2011 – left ankle pain
* 28 February 2011 left foot and hip pain, and also bilateral elbow pain
* 1 – 20 March 2011 – seen for physical therapy, pelvis x-rays (normal), physical training rehabilitation.  Reported pain has lessened, but she still has some pain with lungs; seen for cough, chills and fatigue; wheezing; diagnoses with bronchitis (chest x-rays normal)
* 5 April 2011 – reported pain in hips, back, left leg and inner thigh down to her knee while at physical therapy
* 7 April 2011 - lower back and hip pain
* 14 April 2011 – lower back and hip pain
* 21 April 2011 – nausea from proscribed medicine, chest pain and vomiting; pelvic pain (pelvic ultrasound results normal)
* 19 May 2011 – hip and pelvic pain
* 23 May 2011 – continued pain for three months
* 26 May 2011 – low back pain, hip/groin pain; tests ordered and results were normal
* The continuous list of diagnosis and treatments are listed on the actual advisory opinion

	b.  Based on the available medical record, the applicant did not meet retention standards IAW AR 40-501 (Standards of Fitness) due to Fibromyalgia which led to her separation from the United States Army.

	c.  The applicant’s fibromyalgia was severe enough to prevent her from having successful performance of duty as demonstrated by her being unable to pass the APFT and which prevented her from going to Advanced Individual Training (AIT).  She was seen and evaluated by a rheumatologist and she tried multiple medications without improvement in her symptoms.

	d.  Therefore, based on the information currently available, it is the opinion of the Agency Medical Advisor that a referral of the applicant’s record to IDES for consideration of military medical retirement is indicated at this time.

6.  On 17 May 2019, the applicant was provided with a copy of this advisory opinion to give her an opportunity to submit a rebuttal.  She did not respond.

7.  The advisory opinion did not provide a statement informing the Board how fibromyalgia is contracted (i.e. whether the condition could have been caused by military service or could it had existed prior to military service).

8.  By regulation (AR 635-5), item 28 is based on regulatory or other authority.

9.  By regulation (AR 635-200), provides policy and prescribes procedures and guidance for eliminating enlisted personnel determined to be unqualified for further military service because of unsatisfactory performance.

10.  In reaching its determination, the Board can consider the applicant’s petition and her service record in accordance with the published equity, injustice, or clemency determination guidance.


BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found the relief some relief.  The applicant’s contentions and the medical advisory opinion were carefully considered.  Her record shows she immediately reported medical concerns after enlisting in the Army and arriving for initial entry training.  Although her medical concerns may have existed prior to service, the Board agreed to concur with the advisory official and recommend her record is reviewed by the Office of the Surgeon General for a medical evaluation.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	X	X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was 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 referring his records to The Office of the Surgeon General for review to determine if she should have been discharged or retired by reason of physical disability under the Integrated Disability Evaluation System (IDES).  

     a.  In the event that a formal physical evaluation board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of her case by a formal PEB.  All required reviews and approvals will be made subsequent to completion of the formal PEB.  

     b.  Should a determination be made that the applicant should have been separated under the IDES, these proceedings will serve as the authority to void her administrative separation and to issue her the appropriate separation retroactive to her original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 

2.  The Board further determined that 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 changing her reason for separation without evaluation under the IDES.
	 
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, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.
2.  Army Regulation (AR) 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), in effect at the time, sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Readiness is promoted by maintaining high standards of conduct and performance.

3.  Training and Doctrine Command (TRADOC) Regulation 350-6 (Training - Enlisted Initial Entry Training Policies and Administration), prescribes U.S. Army Training and Doctrine Command (TRADOC) guidance, policies, procedures, and responsibilities for managing and conducting Initial Entry Training (IET).

4.  AR 40-501 (Medical Services – Standards of Medical Fitness) governs regulation governs Medical fitness standards for enlistment, induction, and appointment, including officer procurement programs, Medical fitness standards for retention and separation, including retirement, Medical fitness standards for diving, Special Forces, Airborne, Ranger, free fall parachute training and duty, and certain enlisted military occupational specialties (MOSs) and officer assignments.  It also governs Medical standards and policies for aviation, Physical profiles, and Medical examinations.

5.  AR 635-5 (Separation Documents), prescribes the separation documents that must be prepared for soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214 (Certificate of Release or Discharge from Active Duty).

6.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  BCM/NRs may grant clemency regardless of the type of court-martial.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment.  Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20160016953


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