BOARD DATE: 13 March 2020 DOCKET NUMBER: AR20170003293 APPLICANT REQUESTS: requests a medical discharge, and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Medical documents * Separation documents FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the 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, in effect, he is requesting a medical discharge in order to receive the proper benefits afforded him for his service in the Armed Forces of the U.S. During his active service he was injured while participating in normal routine duties. The injury affected his health as well as his ability to fully participate. He required extensive rehabilitation for his injuries. A decision was made to grant him a general discharge; however, his records show his service was uncharacterized. This has affected his ability to receive military benefits. He was greatly committed to serving his country and enjoyed his time with his fellow comrades. 3. The applicant enlisted in the Regular Army on 3 June 2004. He did not complete initial entry training and was not awarded a military occupational specialty. 4. On 13 August 2004: a. His commander notified him he was initiating action to accomplish his separation him from the Army under the provisions of chapter 11 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). His specific reason for his proposed action was the applicant's lack of motivation and failure to adapt to the military environment. His commander informed the applicant of his rights. b. He waived his rights, requested copies of the documents to be sent to the separation authority supporting the proposed separation, and indicated he would submit a statement in his own behalf. He indicated understood he would be ineligible to apply for enlistment in the Army for a period of 2 years after discharge. c. In his written statement he stated he planned to make a fast recovery. He was ready to move on to bigger and better things. d. The appropriate authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 11, with an Uncharacterized Discharge. 5. On 30 August 2004, he was discharged in accordance with the appropriate authority's decision. Item 24 (Character of Service) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his service was uncharacterized. He completed 2 months and 26 days of net active service this period. 6. His record is void of documentation that shows he was treated for an injury or an illness that warranted his entry into the Physical Disability Evaluation System (PDES). Additionally, there is no indication he was issued a permanent physical profile or underwent a medical evaluation board (MEB) or a physical evaluation board (PEB). 7. On 12 February 2020, the Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion. The advisory opinion stated, in part, based on the available records submitted by the applicant his case was appropriately managed by his medical providers. He underwent timely evaluations and treatment recommendations to include the bone scan for his pain. The recommendation to undergo intensive physical therapy and rest from heavy physical activity was warranted. However, due to the timing of these events and the statements of his commander, he was not a candidate to continue service within the Army. Chapter 11 of AR 635-200 allows commanders the discretion to make these types of decisions based on the performance of Soldiers during initial entry training. As a result of his discharge in the first 180 days of service the characterization of his service should be Uncharacterized. A copy of the complete medical advisory was provided to the Board for their review and consideration. 8. On 25 February 2020, the applicant was provided a copy of the advisory for comment or rebuttal. He did not respond. 9. Army Regulation 635-40 establishes the Army Disability Evaluation System and 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 office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability 10. Army Regulation 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Soldiers with conditions listed in chapter 3 who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB as defined in Army Regulation 635-40. 11. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability 12. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 11 provides for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry-level status. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record and length of service, the separation packet and the reason for his separation. The Board considered the review and conclusions of the medical advising official and found insufficient evidence of in-service of a permanent medical condition that resulted in his separation. The Board found the applicant did not complete required training and that he was not awarded an MOS; he was in an entry-level status at the time of his discharge. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. After reviewing the application and all supporting documents, the Board found that relief was not warranted. ? 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. 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, United States 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 11 provides for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry-level status. This provision applies to individuals who demonstrate they are not qualified for retention because they cannot adapt socially or emotionally to military life; because they lack the aptitude, ability, motivation, or self discipline for military service; or because they demonstrate characteristics not compatible with satisfactory continued service. The separation policy applies to Soldiers who cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline. Army Regulation 635-200 requires an uncharacterized description of service for separation under chapter 11. 3. Army Regulation 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Soldiers with conditions listed in chapter 3 who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB as defined in Army Regulation 635–40. 4. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 5. Army Regulation 635-40 establishes the Army Disability Evaluation System and 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 office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 6. AR 15-185 (ABCMR), paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170003293 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1