IN THE CASE OF: BOARD DATE: 31 July 2020 DOCKET NUMBER: AR20170013476 APPLICANT REQUESTS: * correction of U.S. Army Reserve (USAR) Personnel Command Orders D-12-984145, dated 20 December 1999, to change her type of discharge from honorable to disability * removal of Headquarters, 88th USAR Command, Orders 169-13, dated 10 August 1992, from her Army Military Human Resource Record (AMHRR) * removal of the Notification to Soldier of Unsatisfactory Participation documents from her AMHRR * correction of her DD Form 214 (Certificate of Discharge from Active Duty) to show she was honorably discharged by reason of disability APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, section 1552) * Letter, dated 22 June 2017, with attachments – * three DA Forms 5181-R (Screening Note of Acute Medical Care), dated 3 October 1991, 21 October 1991, and 22 November 1991 * four DA Forms 519-8 (Radiologic Consultation Request/Report), dated 3 October 1991, 21 October 1991, 31 October 1991, and 22 November 1991 * Standard Form 600 (Chronological Record of Medical Care), dated 22 November 1991 * three Memorandums, 5501st U.S. Army Hospital Command, dated 13 April 1992, 26 May 1992, and 8 July 1992, subject: Letter of Instruction – Unexcused Absence, with Postal Service Forms 3811 (Domestic Return Receipt) * Memorandum, 5501st U.S. Army Hospital Command, dated 21 July 1992, subject: Unsatisfactory Participation (Unexcused Absences) * Memorandum, 5501st U.S. Army Hospital Command, dated 21 July 1992, subject: Reduction under Army Regulation 140-158, Chapter 7, with Postal Service Form 3811 * Department of Veterans Affairs (VA) Form 21-2545 (Report of Medical Examination for Disability Evaluation), dated 2 June 1994, with Clinical Record * Medical Records, Podiatry, dated 20 March 1994 through 26 September 1994 * Medical Records, St. Croix Valley Clinic, dated 24 March 1994 through 6 January 1995 * Orders D-12-984145, USAR Personnel Command, dated 28 December 1999 (USAR discharge) * DD Form 256 (Honorable Discharge Certificate), dated 28 December 1999 * Letter, National Personnel Records Center, dated 13 July 2006 * Medical Records, Woodbury Clinic, dated 25 April 2011 through 7 January 2011 * DA Form 5016 (Chronological Statement of Retirement Points), dated 22 December 2016 * Letter, Disabled American Veterans, dated 1 June 2017 * six Letters, VA, dated 4 November 1999, 9 November 1999, 16 December 2015, 22 December 2016, 1 June 2017, and 8 June 2017 REFERENCES: 1. Title 10, U.S. 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 Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 135-91 (Army National Guard and Army Reserve – Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), in effect at the time, defined Army National Guard and USAR service obligations and prescribed policies and procedures governing the various types of service obligations and participation requirements. Paragraph 4-11 (Unexcused Absence from Unit Training Assemblies) stated a Soldier is an unsatisfactory participant when nine or more unexcused absences from scheduled drill (unit training assembly) occur during a 1-year period. 3. Army Regulation 140-1 (Army Reserve – Mission, Organization, and Training), in effect at the time, prescribed policy for the USAR mission, its organization, and training. Chapter 3 (Training) defined a unit training assembly as an authorized and scheduled training assembly of at least 4 hours, including roll call and rest periods. At least 1 day's pay or one retirement point, or both, is authorized for each assigned or attached person who satisfactorily completes the entire unit training assembly. No more than two unit training assemblies are conducted per day. 4. Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers), in effect at the time, prescribed policies, responsibilities and procedures to assign, attach, detail, remove, or transfer USAR Soldiers. Paragraph 4-15 (Involuntary Reassignment for Unsatisfactory Participation) stated a Soldier who has completed basic training, and is not within 3 months of expiration term of service, who fails to participate satisfactorily may be reassigned to the appropriate control group of the Individual Ready Reserve (IRR). 5. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Paragraph 3-9 (Uncharacterized Separations) stated a separation will be described as an entry-level separation with service uncharacterized if processing is initiated while a Soldier is in an entry-level status. b. Paragraph 4-2 (Discharge or Release from Active Duty upon Termination or Enlistment, and Other Periods of Active Duty or Active Duty for Training (ADT)) stated Army National Guard of the United States and USAR Soldiers who successfully complete a period of initial ADT will out-process. The service of Soldiers specified in this paragraph who are in an entry-level status will be uncharacterized, even though they have completed their initial ADT successfully. c. Chapter 11 (Entry-Level Status Performance and Conduct) stated this policy applies to Soldiers who are in an entry-level status and, before the date of the initiation of separation action, have completed no more than 180 days of creditable continuous active duty or initial ADT. Service will be uncharacterized for separation under the provisions of this chapter. 6. Army Regulation 135-178 (Army National Guard and Army Reserve – Separation of Enlisted Personnel), in effect at the time, established policies, standards, and procedures governing the administrative separation of enlisted Soldiers from the Army National Guard of the United States and the U.S. Army Reserve. 7. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents which are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for preparing and distributing DD Form 214. Table 2-1 (DD Form 214 Preparation Instructions) stated for item 28 (Narrative Reason for Separation), enter the reason for separation based on the regulatory or statutory authority. For personnel ordered to ADT by self-terminating orders, show the reason as "Completion of Period of ADT." 8. Army Regulation 635-8 (Separation Processing and Documents), currently in effect, prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or the custody and control of the Army. It establishes standardized policy for preparation of the DD Form 214. Paragraph 5-6 (Rules for Completing the DD Form 214) provides detailed instructions for data required in each block of the DD Form 214. For block 24 (Character of Service), when a Reserve Component Soldier successfully completes initial ADT, the character of service is honorable unless directed otherwise by the separation approval authority. 9. Title 38, U.S. Code, section 1110 (General – Basic Entitlement), provides that for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 10. Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation – Basic Entitlement), provides that for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 11. The VA website (va.gov/housing-assistance/home-loans/eligibility) provides eligibility requirements for VA Home Loan programs. a. The service requirements for National Guard and Reserve members include: (1) 90 days of active duty service (not ADT) between 2 August 1990 and the present or (2) 6 creditable years in the Selected Reserve or National Guard and meet one of the following descriptions: * were discharged honorably * were placed on the Retired List * were transferred to the Standby Reserve or an element of the Ready Reserve other than the Selected Reserve after service characterized as honorable * continue to serve in the Selected Reserve b. If the minimum service requirements are not met, a former service member may be eligible for a Certificate of Eligibility if the member was discharged for one of the following reasons: * hardship * the convenience of the Government (must have served at least 20 months of a 2-year enlistment) * early out (must have served 21 months of a 2-year enlistment) * reduction in force * certain medical conditions * service-connected disability (disability related to military service) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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: a. She was misdiagnosed for an injury. b. She applied for a VA Home Loan in December 2016 and was denied because she was not eligible for a Certificate of Eligibility. She talked to a local VA representative and discussed why she never reported for USAR drill and the injuries she incurred during her active duty service in 1991 and 1992. The VA representative advised her to file a VA claim for benefits. c. She was approved for VA disability benefits on 1 June 2017. The examining physician informed her that she had been misdiagnosed in the past because the focus was on the stress fractures and not the plantar fasciitis (inflammation of the ligament that connects the heel bone to the toes). Her injury occurred in 1991 during basic training and kept getting worse during her active duty service in 1991 and 1992. d. She was diagnosed with plantar fasciitis in 1994. Her disability rating decision was focused on her stress fractures in 1994 and again in 1999. Her plantar fasciitis was not addressed in her disability rating. She is now receiving 50-percent disability compensation for plantar fasciitis. e. She was released from ADT in February 1992. She was in a lot of pain when she returned home. She called the VA and talked to a representative about reporting to scheduled USAR drill in March 1992. She doesn't remember the VA representative's name. After hearing about her medical condition, the VA representative told her not to report to USAR drill and stated he would have her assigned to the IRR. She thought the VA representative was representing her and coordinating with her USAR commander regarding her inability to physically report to scheduled USAR drill. f. In April 1992, she received a letter from her USAR commander regarding her unexcused absence from scheduled USAR drill in March 1992. She called the same VA representative again and he told her that it was fine and that she did not have to report to scheduled USAR drill. g. She received another letter in May from her USAR commander regarding her unexcused absence from scheduled USAR drill in April 1992. The VA representative kept assuring her that she didn't have to report to scheduled USAR drill. h. The last time she talked to the VA representative, she told him that she wanted to file a disability claim for her injury. He told her that her medical records were lost. She gave up and went into a deep depression. i. In July 1992, she received a letter from her USAR commander stating she was transferred to the IRR and she thought the VA representative finally did what he promised. She had no idea that being assigned to the IRR meant she did not have the same privileges as other Soldiers. j. After she was approved for VA disability benefits for plantar fasciitis, she applied for a VA Home Loan, but her Certificate of Eligibility was denied again, even though she had been approved for VA disability benefits. k. Her DD Form 214 doesn't reflect her situation. She should have been discharged from active duty for disability, not for completing ADT. l. She spoke to the VA Home Loan center representative and was informed her DD Form 214 should be corrected to show she was discharged for disability. 3. Her DD Form 1966 (Record of Military Processing – Armed Forces of the United States), dated 8 August 1991, shows she was enlisting for assignment to the 5501st U.S. Army Hospital, USAR. 4. She enlisted in the USAR on 29 August 1991 for a period of 8 years. 5. Her DA Form 3540 (Certificate and Acknowledgement of Service Requirements for Individuals Enlisting, Reenlisting, or Transferring, into Troop Program Units of the USAR), dated 29 August 1991, shows she acknowledged she understood she must participate satisfactorily during the entire period of her enlistment. Satisfactory participation was defined to include: a. After completing her ADT, she will serve the remaining period of her enlistment with her assigned unit. b. She will be required to attend all scheduled unit training assemblies unless she is excused by proper authority. If she accrued nine or more unexcused absences during any continuous 365-day period, she may be declared an unsatisfactory participant. c. She will be responsible for replying to and complying with all official orders and correspondence which she may receive. d. If she fails to participate satisfactorily for any of the reasons explained or which may be placed into effect hereafter by proper authority, she may be declared an unsatisfactory participant and may be subject to removal from the unit and transfer to the IRR under other than honorable conditions. 6. Military Entrance Processing Station Orders 172-50, dated 4 September 1991, ordered her to initial ADT with a reporting date of 9 September 1991. Upon completion of initial ADT she would return to her home. The training period was shown as approximately 18 weeks or completion of basic and military occupational specialty training. 7. Her medical documents, dated 3 October 1991 through 22 November 1991, show she complained of lower extremity pain. Radiologic reports show normal bone scans and normal x-rays. 8. Her AMHRR is void of the facts and circumstances surrounding medical conditions or injuries incurred during her initial ADT. 9. Headquarters, Fifth U.S. Army and Fort Sam Houston, Orders 5-38, dated 8 January 1992, awarded her primary military occupational specialty 91B (Medical Specialist) effective 6 February 1992. 10. She was released from initial ADT on 6 February 1992. Her DD Form 214 shows in: * item 8a (Command to Which Transferred) – 5501st U.S. Army Hospital * item 11 (Primary Specialty) – 91B Medical Specialist * item 12a (Date Entered Active Duty This Period) – 9 September 1991 * item 12b (Separation Date This Period) – 6 February 1992 * item 12c (Net Active Service this Period) – 4 months and 28 days * item 14 (Military Education) – Medical Specialist Course, 10 weeks, February 1992 * item 23 (Type of Separation) – Release from ADT * item 24 (Character of Service) – Uncharacterized * item 25 (Separation Authority) – Military Entrance Processing Station Self- Terminating Order 172-50, dated 4 September 1991, Course 91B * item 28 (Narrative Reason for Separation) – Completion of Period of ADT 11. The DA Form 4187 (Personnel Action), dated 24 March 1992, shows the Commander, 5501st U.S. Army Hospital, approved her advancement to the rank/grade of private two/E-2 effective 9 March 1992. 12. The memorandum from the Commander, 5501st U.S. Army Hospital Command, dated 13 April 1992, subject: Letter of Instruction – Unexcused Absence, notified the applicant of her absence during the scheduled unit training assemblies on 14 and 15 March 1992. The commander stated: a. Unless the absence referenced is excused, she will have accrued four unexcused absences within a 1-year period. b. Absences from training assemblies may be excused only for reasons of sickness, injury, emergency, or other circumstances beyond her control. If her absence was for one of these reasons, she should furnish her unit an appropriate affidavit or certification by a doctor, medical officer, or other person(s) having specific knowledge of the emergency or circumstances, requesting that it be excused. c. If she accumulates nine unexcused absences within a 1-year period, she can be declared an unsatisfactory participant. If this action is taken, she may be transferred to the IRR for the balance of her service obligation. 13. The memorandum from the Commander, 5501st U.S. Army Hospital Command, dated 26 May 1992, subject: Letter of Instruction – Unexcused Absence, notified the applicant of her absence during the scheduled unit training assemblies on 9 and 10 May 1992. The commander stated unless the absence referenced is excused, she will have accrued seven unexcused absences within a 1-year period. She was again advised of the conditions for excused absences and consequences of unsatisfactory participation. 14. The memorandum from the Commander, 5501st U.S. Army Hospital Command, dated 8 July 1992, subject: Letter of Instruction – Unexcused Absence, notified the applicant of her absence during the scheduled unit training assemblies on 13 and 14 June 1992. The commander stated unless the absence referenced is excused, she will have accrued 11 unexcused absences within a 1-year period. She was again advised of the conditions for excused absences and consequences of unsatisfactory participation. 15. The memorandum from the Commander, 5501st U.S. Army Hospital Command, dated 21 July 1992, subject: Reduction under Army Regulation 140-158 (Army Reserve – Enlisted Personnel Classification, Promotion, and Reduction), Chapter 7, notified the applicant that she was initiating action to reduce her to the rank/grade of private/E-1 for unsatisfactory participation. 16. The memorandum from the Commander, 5501st U.S. Army Hospital Command, dated 21 July 1992, subject: Unsatisfactory Participation (Unexcused Absences), notified the applicant that she had accumulated nine unexcused absences within a 1-year period. The commander informed her that she was declared an unsatisfactory participant and would be transferred to the IRR for the balance of her service obligation. 17. Headquarters, 88th USAR Command, Orders 169-13, dated 10 August 1992, reassigned her to the USAR Control Group (Annual Training) effective 10 August 1992. The reason is shown as unsatisfactory participation. 18. USAR Personnel Command Orders D-12-984145, dated 28 December 1999, honorably discharged her from the USAR effective 28 December 1999. 19. The letter from the VA, dated 1 June 2017, informed the applicant of the decision to award her a 50-percent disability rating for bilateral plantar fasciitis effective 22 December 2016. 20. The letter from the VA, dated 8 June 2017, regarding her request for a Certificate of Eligibility for VA Home Loan benefits, informed her the VA determined she was not eligible. She did not serve the minimum time required for the benefit. A minimum of 6 creditable years is required during this era in order to be eligible. 21. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: The applicant is applying to the ABCMR in essence requesting a referral to the Disability Evaluation System (DES). She claims that during her 5 months of active duty, she was incorrectly diagnosed with stress fractures in her feet and was later correctly diagnosed with plantar fasciitis. Because of this error, she requests that her “Honorable Discharge to reflect Discharge for Disability.” The Record of Proceedings outlines the applicant’s military service and the circumstances of the case. The applicant entered the United States Army Reserve on 29 August 1991; was reassigned to the USAR Control Group (Annual Training) on 10 August 1992 for unsatisfactory participation; and was honorably discharged at the end of her eight-year commitment on 28 December 1999. She was active duty from 9 September 1991 through 6 February 1992 during which time she completed basic training and her advanced individual training. The applicant was seen several times for leg and foot pain during her training. On exams, she was tender to palpation along her anterior tibias (shins) and the plantar surfaces of her feet. At one point it was thought she could have a stress fracture, a common injury in recruits. A bone scan was obtained in October 1991 and was normal, with no evidence of stress fracture or other pathology. She went on to successfully complete her AIT and she was awarded the MOS of 91B - medical specialist. Evidence shows that she was later diagnosed and received treatment for plantar fasciitis. In this case, it is the condition’s effects on her ability to perform as a Soldier rather than the exact etiology of her pain that is the issue. There is no evidence that the bilateral leg and/or foot pain at any point prior to her discharge failed the medical retention standards of chapter 3, AR 40-501, Standards of Medical Fitness, and would therefore have been a cause for referral to the Disability Evaluation System. There is no evidence that any medical condition prevented the applicant from attending Unit Assembly Training or being able to reasonably perform the duties of her office, grade, rank, or rating. Given the current documentation, it is the opinion of the Agency Medical Advisor that a referral of her case to the DES is not warranted. 22. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 23. Title 38, Code of Federal Regulations, part IV, is the VA Schedule for Rating Disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. BOARD DISCUSSION: After review of the application and all evidence, including the Army Review Board Agency Medical Advisory Opinion, the Board found insufficient evidence to grant relief. The board carefully considered the applicant’s contentions regarding her requests to change her type of discharge from honorable to disability; remove Orders 169-13, dated 10 August 1992; remove the Notification to Soldier of Unsatisfactory Participation documents; and correction of her DD Form 214 (Certificate of Discharge from Active Duty) to show she was honorably discharged by reason of disability. The Board agreed with the Medical Advisory Opinion that the available record does not reasonably support that the bilateral leg and/or foot pain at any point prior to his discharge failed the medical retention standards of chapter 3, AR 40-501, Standards of Medical Fitness, and would therefore have been a cause for referral to the Disability Evaluation System. There is no evidence that any medical condition prevented the applicant from attending Unit Assembly Training or being able to reasonably perform the duties of her office, grade, rank, or rating. Given the current documentation, the Board agreed with the Medical Advisory Opinion that a referral of her case to the DES is not warranted. Therefore, the Board agreed that the applicant’s discharge characterization is appropriate and there is insufficient evidence to correct the applicant’s records. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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. ADMINISTRATIVE NOTE(S): not applicable. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170013476 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1