ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  22 May 2019

	DOCKET NUMBER:  AR20170004158


APPLICANT REQUESTS:  reconsideration of his earlier request for correction of his military records to change the narrative reason for his separation from unsatisfactory performance to medical disability. 

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)

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20160017614 on 10 November 2016.

2.  The applicant states that while in the Army, he was injured and suffered a herniated disk which made it hard for him to run.  He got off profile even though he was not better.  Now, he is worse off than he was.  He has copies of both his MRIs (magnetic resonance imaging), one from the Army and one from when he got out to prove his condition had worsened.  He would like a change in narrative for (block 28-Narrative for Separation) on his DD Form 214 to reflect a medical discharge for separation.

3.  A review of the applicant’s service record shows:

	a.  He enlisted in the Regular Army on 9 April 2014.

	b.  Excerpts of his medical records that reflect:

* a separation physical was completed on 19 May 2016 that stated no changes in his medical condition at this time and other associated symptoms
* he was not on any medications or taking ongoing therapy for other medical concerns
* he was seen by his Primary Care Physician for low back pain and received conservation treatment to include physical therapy, pain mediation, and steroid injections
	c.  On 22 July 2016, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him under Army Regulation (AR) 635-200 Chapter 13-2e (Active Duty Enlisted Administrative Separations) for unsatisfactory performance with an honorable discharge.  The commander cited the specific reason as the applicant’s Army Physical Fitness Test failures on two separate occasions. 

	d.  On 25 July 2016, the applicant acknowledged receipt of the commander’s notification.  He waived his right to consult with counsel concerning election of rights of the proposed administrative charges.  He submitted his election of rights to his immediate commander affirming:

* receipt of notification of separation under AR 635-200, Chapter 13-2e (failure of two consecutive physical training tests without medical limitations)
* right to counsel prior to submitting election of rights
* right to submit a rebuttal in seven days

	e.  On 25 July 2016, his immediate commander recommended separation under AR 635-200, Chapter 13-2e.

	g.  On 26 July 2016, the separation authority approved the separation action and ordered the applicant discharged under AR 635-200, chapter 13-2e, and ordered his service be characterized as honorable.

	h.  The applicant was discharged on 4 August 2016.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, Chapter 13-2e due to unsatisfactory performance with an honorable characterization of service.  He completed 2 year, 2 months and 8 days of active service.  His DD Form 214 shows in: 

* Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized), the Army Commendation Medal, National Defense Service Medal, Global War on Terrorism Service Medal, Army Service Ribbon
* Item 26 (Separation Code) – JHJ
* Item 28 (Narrative Reason for Separation) – Unsatisfactory Performance

4.  On 21 February 2019, a medical advisory opinion was completed and stated that 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 or condition that would support a change to the character and/or reason for the discharge in this case.  There was no indication for disability evaluation system (DES) processing on this applicant, no indication for a medical evaluation board or physical evaluation board (MEB/PEB).  The applicant had adequately treated low back pain, was off profile, and failed the run portion of his Army Physical Fitness Test two times.  The applicant did not reach a medical retention determination point (MRDP) for his conditions.  The Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation.  Congress grants that role and authority to the Department of Veteran Affairs, operating under a different set of laws.

5.  The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal or comments.  He did not respond. 

6.  By regulation (AR 635-200), chapter 13 states a Soldier may be separated per this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.

7.  By regulation (AR 635-40), conditions which do not render a Soldier unfit for military service will not be considered in determining the compensable disability rating unless they contribute to the finding of unfitness.  

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found the relief was not warranted.  Based upon the medical advisory’s finding that it found no evidence of a medical disability or condition that would support a change to the character and/or reason for the discharge, the Board concluded there was insufficient evidence to warrant a change to the narrative reason for separation.

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.  Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel) in effect at the time, provides for the separation of enlisted personnel.

	a.  An honorable discharge is a separation with honor.  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.

	b.  A general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge

	c.  Chapter 13 states a Soldier may be separated per this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.

2.  AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for retention and separation, including retirement.  Chapter 3 of the regulation gives the various medical conditions and physical defects which may render a Soldier unfit for further military service.

3.  AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) set forth the policies for the disposition of Soldiers found unfit because of physical disability to reasonably perform the duties of his/her office, grade, rank, or rating.  

	a.  Paragraph 3-1 states that 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.  The Soldier will not be declared physically unfit for military service because of- disabilities known to exist at the time of the Soldier's acceptance for military service that have remained essentially the same in degree since acceptance, and have not interfered with the Soldier’s performance of effective military service.

	b.  Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of a 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 service.

	c.  Paragraph 4-17 states PEB's are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendations to establish eligibility of a Soldier to be separated or retired because of physical disability.

	d.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  The VA can evaluate a veteran throughout their lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

	e.  Appendix B, paragraph f of that regulations states conditions which do not render a Soldier unfit for military service will not be considered in determining the compensable disability rating unless they contribute to the finding of unfitness.


ABCMR Record of Proceedings (cont)	 AR20170004158


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