ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 August 2019 DOCKET NUMBER: AR20160019321 APPLICANT REQUESTS: correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his: * character of service as “honorable” in lieu of “uncharacterized” * narrative reason for separation as “medical training injury resulting in disability” in lieu of “Failure to Meet Procurement Medical Fitness Standards” APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 he was discharged for “Failure to Meet Procurement Medical Fitness Standards,” which is incorrect. He was discharged because he tore a muscle in his foot. He was sent to physical therapy and was on a soft shoe profile. However, that did not correct the problem. He was evaluated by a civilian doctor and he was told that if he continued with training he would damage his foot permanently. He believes he should have been honorably/medically discharged, due to a training injury. He applied for a “COE” [Certificate of Eligibility] for a Veterans Administration Home Loan. He states he was in the U.S. Army Reserve for 2 years and 5 months and he received his injuries during training. 3. The applicant provides his DD Form 214 which shows he was discharged on 12 May 1999 under provisions (UP) of 635-200 (Personnel Separations – Enlisted Personnel) paragraph 5-11 for failure to meet procurement medical fitness standards with an uncharacterized character of service. His diagnosis was Flexible Pes Plano valgus and Plantar Fasciitis exacerbated by diagnosis. 1. 4. A review of the applicant’s service records shows the following: a. He enlisted in the U.S. Army Reserve on 9 January 1997. He entered active duty for training (ADT) on 17 February 1999 at Fort McClellan, AL. b. Report of Medical Examination, dated 16 February 1999, shows the applicant annotated item 23 (Have you ever been discharged from the military service because of physical, mental, or other reasons), “Yes.” He also explained this entry by stating, “I was in too long without going to basic.” Medical reasons caused the delay. “Discharged 12 December 1998.” He was found qualified for enlistment. c. A memorandum, subject: Compliance Memorandum Reference Separation of Soldier Under Army Regulation (AR) 635-200, chapter 5-11, dated 13 April 1999, shows the applicant’s commander stated, on this date, an official inquiry was conducted for possible fraudulent enlistment. This memorandum also shows the applicant was interviewed in reference to his medical problem (flat feet). He stated that he did have knowledge of his medical condition prior to entering the service, and he informed his recruiter. He stated that he did not intend to defraud the U.S. Government to obtain medical treatment, disability, retirement, veteran’s benefits and/or monetary benefits. His commander stated that he did not believe the applicant attempted to commit fraud against the U.S. Government and/or the U.S. Army. d. His record contains a DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings), dated 16 April 1999. It shows after careful consideration of medical records, laboratory findings, and medical examination, the applicant was medically unfit for appointment or enlistment in accordance with medical fitness standards in effect at the time and in the opinion of the evaluating physicians the condition(s) existed prior to service. His disposition was he does not meet medical fitness standards for enlistment UP Paragraph 2-10b (14), Chapter 2, AR 40-501. Existed prior to service (EPTS): YES. Service aggravated: NO. It is recommended that this Soldier be separated from military service UP paragraph 5-11, AR 635-200. e. On 29 April 1999, the medical approving authority approved the findings and recommendation of the EPSBD, 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. d. On 3 May 1999, the applicant acknowledged that he was informed of the medical findings. He also acknowledged his understanding 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 to be discharged from the Army without delay or request retention on active duty. He understood if retained, he may be involuntarily reclassified into another military occupational specialty based upon his medical condition. The applicant concurred with the proceedings and requested to be discharged from the Army without delay. d. e. On 5 May 1999, the unit commander recommended the applicant's discharge. f. On 6 May 1999, the discharge authority approved the applicant's separation from the Army under the provisions of AR 635-200, paragraph 5-11, by reason of failure to meet procurement medical fitness standards. g. On 12 May 1999, 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 2 month and 26 days of active service. The narrative reason for separation was "failure to meet procurement medical fitness standards" and his service was uncharacterized. He was assigned Separation Code JFW. 5. On 28 March 2017, Case Management Division (CMD) sent a letter to the applicant requesting medical documents that support his injury. Applicant was given 60 days until 28 May 2017, he did not respond. 6. On 30 May 2017, CMD requested a medical review of the applicant’s alleged medical condition(s) to ascertain if condition(s) warranted separation through medical channels. On 19 July 2017, the ARBA senior medical advisor rendered an advisory opinion in the applicant’s case. The advisor opined: a. The applicant did not meet medical accession standards for undisclosed (on medical documentation and interview) EPTS flexible Pes Plano valgus (i.e. flat feet) with secondary plantar fasciitis IAW (in accordance with) Chapter 2, AR 40-501 , and following the provisions set forth in AR 635-40 that were applicable to the applicant's era of service. b. The applicant met medical retention standards for EPTS visual acuity (myopia & astigmatism) IAW Chapter 3, AR 40-501 , and following the provisions set forth in AR 635-40 that were applicable to the applicant's era of service. c. The applicant's medical conditions were duly considered during medical separation processing. d. 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. 7. On 26 July 2017, the applicant was provided with a copy of this advisory opinion to give him an opportunity (30 days) to submit a response and/or a rebuttal. He did not respond. 8. By regulation (AR 635-200) 1. a. 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 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. b. 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 conditions is authorized by 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. A general discharge is not authorized. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board concluded that relief was not warranted. Based upon the medical advisory’s finding no evidence of a medical disability or condition which would support a change to the character or reason for the discharge and the applicant failed to submit a rebuttal to those findings, the Board concluded there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s record. 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. 9/17/2019 XXXX X 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) 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation. Chapter 2 provides the physical standards for enlistment/induction. Paragraph 2-11 refers to conditions which may result in failure of procurement standards. 3. AR 635-5 (Separation Documents), in effect at the time, prescribes policies and procedures for the completion of the DD Form 214. It stated, based on the specific separation authority, the source of the SPD code and narrative reason for separation was AR 635-5-1 (SPD Codes). 4. AR 635-5-1, in effect at the time, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identified the SPD code of "JFW" as being associated with separations under the provisions of chapter 5-11, AR 635-200; the required narrative reason for separation was "Failure to Meet Medical Fitness Standards." 5. 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. 6. AR 635-200 sets forth the basic authority for separation of enlisted personnel. a. 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 a. 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. b. 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 conditions is authorized by 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. Paragraph 3-7a states 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. 7. 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.