ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 July 2019 DOCKET NUMBER: AR20170004457 APPLICANT REQUESTS: * authority and reason for separation changed to physical disability * 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) * Self-Authored Statement * Letter from Orthopedic Doctor * Medical Records * Department of Veterans Affairs (VA) Medical Records * Background Investigation * Family Information * VA Award Letter * Army Discharge Review Board (ADRB) Proceedings * Letter to Army Review Boards Agency (ARBA) * Employment Offers * Medical Advisory * VA Appeal Decision * Record of Medical Care * DA Form 4856 (General Counseling Form) * DA Form 705 (Army Physical Fitness Test Scorecard) * National Guard Separation Notification * Incident Report * Army Certificates of Training * Acute Medical Screening Note * Information on Ankle Synovitis * VA Disability Ratings * Outpatient Slip * Patient Orthopedic Plan 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, that he should have received a disability retirement. He claims he was in an isolated abusive work condition while in basic training and advanced individual training. He faced discriminatory/retaliatory abusive treatment from his command. He request his record of unsatisfactory performance and reduction in grade expunged. He had physical ailments during training, but he was able to complete basic training and advanced individual training. His injuries were not severe enough to prevent his graduating both courses and completing all requirements. He was subjected to name calling while being a medical holdover, by his peers and others. He did not get good references and missed out on job opportunities. He claims he was not counseled /notified about his discharge. He submitted a case to the ABCMR and received relief in his case, but now request to be medically retired or discharged. 3. The applicant provides: a. Letter from Orthopedic Doctor, dated 15 June 2016, which states that the applicant was evaluated on 2 November 2012 by the author, and the exam revealed bilateral 1 - 2 pitting lower extremity edema, decreased ankle dorsiflexion and some pain with instability to left lateral ankle ligaments. b. Medical Records, dated 2 November 2012, which states the applicant was assessed with bilateral lower extremity edema, and ankle equinus. It states that the condition could be improved. c. VA Medical Records, dated 26 September 2016. d. Background Investigation, dated 29 August 2001, which states the applicant was a suspect for making harassing phone calls to a past girlfriend. Residences were investigated for factual data with some being confirmed. e. Family Information, what appears to be funeral service pamphlets for two members of the applicant’s family. f. VA Award Letter, dated 10 March 2017, which states the applicant is rated at 20% for service connected injuries and receives a monthly monetary award. g. Army Discharge Review Board (ADRB) Proceedings, dated 16 June 2006, which states the Board directed that the results of the ADRB proceedings be implemented, by issuing a new National Guard Bureau (NGB) Form 22 reflecting narrative reason for discharge as "Physical Standards". h. Letter to Army Review Boards Agency (ARBA), dated 26 December 2003, which states that the applicant was discharged due to failing three Army Physical Fitness test, and he feels this was an unjust discharge. i. Employment Offers, which states the applicant was conditionally offered two law enforcement jobs. j. Medical Advisory, dated 12 May 2017. k. VA Appeal Decision, dated 25 May 2017, which states that his appeal to add Pitting edema of the left and right lower extremities was approved at 0% service connected. His overall combined rating remained 20% which was effective from 29 January 2016. l. Record of Medical Care, dated 9 November 1995, which states the applicant was seen for spraining his ankle on a second occasion. m. DA Form 4856, dated 5 December 1998, which states the applicant failed to meet Army standards on his physical fitness test. n. DA Form 705, dated 5 December 1998, which states the applicant failed multiple times to meet Army standards on his physical fitness test. o. National Guard Separation Notification, dated 14 May 1999, which states the applicant was being recommended for separation from the Florida Army National Guard for Unsatisfactory Performance. p. Incident Report, dated 6 February 2002, which states the applicant stepped on a rock and twisted his ankle. q. Certificates of Training, which states the applicant completed basic combat training and the unit supply course. r. Acute Medical Screening Note, dated 6 September 1995. s. Information on Ankle Synovitis, dated 10 June 2017. t. VA Disability Ratings, which states the applicant is rated at 20% for service connected injuries. u. Outpatient Slip, dated 27 June 2016. v. Patient Orthopedic Plan, dated 30 May 2017. 4. A review of his service records shows: a. He enlisted in the Florida Army National Guard (FLARNG) on 22 June 1995. b. His DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects that he entered active duty for training (ADT) on 10 August 1995. c. He was released from ADT on 18 December 1995, under the provisions of Army Regulation (AR) 635-200, Chapter 4 (Completion of Required Active Service), with a uncharacterized characterization of service. He served 4 months and 9 days of active service. d. He was released from ADT to the control of his ARNG unit, Headquarters and Headquarters Detachment, 1st Battalion, 111th Aviation, Jacksonville, FL. e. The specific facts and circumstances leading to the applicant's discharge are not contained in the available records. A prior records review indicates that his previous record contained a properly constituted NGB Form 22 (Report of Separation and Record of Service). This form indicated that the applicant was discharged under the provisions of Chapter 8, paragraph 8-26d, NGR (National Guard Regulation) 600-200 (Enlisted Personnel Management), with a characterization of service of honorable, and a reenlistment eligibility (RE) code of 3. f. His NGB Form 22 reflects that he was transferred on 1 October 1999 from the ARNG to the U.S. Army reserve (USAR) Control Group, under the provisions of NGR 600-200, with an honorable characterization of service. 5. On 12 May 2017, the Army Review Boards Agency medical advisor/ psychologist reviewed the applicant's case and rendered an advisory opinion and opined: a. The available record does not support post-traumatic stress disorder (PTSD) or another boardable behavioral health condition the time of the applicant’s military service. b. The applicant met medical retention standards for elevated blood pressure (with or without diagnosis of hypertension), history of transient pitting edema (swelling of both legs), history of left ankle sprain(s), history of transiently elevated liver enzymes, pseudo folliculitis barbae and visual acuity in accordance with (IAW) Chapter 3, AR 40-501 (Standards of Fitness), and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), 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. 6. On 16 May 2017, the applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal. He provided documentation of two service connected injuries through his appeal with the VA which rated him 0% service connected. 7. On 21 February 2019, ARBA received a Congressional Inquiry in reference to the status of the applicant’s case. The congressional liaison for ARBA replied on 21 February 2019, informing the Constituent Services Representative that the applicant has an open application and is still being processed for consideration. 8. The applicant desires to appear before the Board if warranted. 9. The applicant applied to the ADRB, on a memorandum dated 7 June 2006 the Board found that after carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony, and rationale, the Board determined that the narrative reason for discharge should be changed to current standards and recommends that the reason be changed to "Physical Standards - Current Standards." 10. By regulation (NGR 600-200), chapter 8, paragraph 8-26d provides, in pertinent part, that commanders will separate a member under this chapter when it is clearly established that in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training or become a satisfactory soldier. Commanders will initiate discharge proceedings for soldiers without medical limitations who have two consecutive failure of the Army Physical Fitness Test (APFT). 11. By regulation (AR 15-185), an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the medical advisory finding no evidence of a medical disability or condition which would support a change to the character or reason for the discharge, the Board concluded there was insufficient evidence to show an error or injustice which would warrant making a change to the applicant’s 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. 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 (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. 3. Army Regulation 635-40 (Personnel Separations, Physical Evaluation for Retention, Retirement, or Separation), 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 or her office, grade, rank, or rating. The regulation states an MEB is convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualification for retention based on the criteria in Army Regulation 40-501, chapter 3. If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. 4. National Guard Regulation (NGR) 600-200 govern the procedures for the administrative separation of enlisted personnel of the Army National Guard. Chapter 8, paragraph 8-26d of NGR 600-200 provides, in pertinent part, that commanders will separate a member under this chapter when it is clearly established that in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training or become a satisfactory soldier. Commanders will initiate discharge proceedings for soldiers without medical limitations who have two consecutive failure of the Army Physical Fitness Test (APFT) 5. AR 15-185 (ABCMR) 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, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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. ABCMR Record of Proceedings (cont) AR20170004457 6 1