BOARD DATE: 28 February 2020 DOCKET NUMBER: AR20170015403 APPLICANT REQUESTS: honorable physical disability separation in lieu of uncharacterized discharge due to failure to meet procurement medical fitness standards APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 8 April 2018 * DD Form 149, dated 22 July 2017 * multiple Radiology Results, dated between 26 February 2007 and 11 April 2007 * 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, 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 he should have received a medical discharge. He had no injury prior to his enlistment and was injured on active duty. He has provided medical documentation proving his injury was service-related. 3. A DD Form 2807 ( Report of Medical History), dated 16 December 2006 and completed for the purpose of enlistment, shows the applicant did not annotate anything abnormal beyond stitches received in his left thumb and chicken pox, both incurred as a 6-year old. 4. A DA Form 2808 (Report of Medical Examination), dated 16 December 2006, shows he was found qualified for service with a physical profile rating of “1” in all physical categories. 5. The applicant enlisted in the Regular Army on 16 January 2007. 6. The applicant provided multiple copies of Radiology Results, which show: a. On 26 February 2007 he was evaluated at the Troop Medical Clinic for possible structural abnormality after complaints of lower back pain. The radiology results show the lumbar disc spaces were normal. There was no evidence of fracture of other abnormality and no evidence of spondylosis or spondylolisthesis. The impression was of a normal lumbar spine. b. On 26 February 2007, he was evaluated at the Troop Medical Clinic for possible structural abnormality of the cervical - spine, due to neck pain. The radiographs of the cervical spine demonstrate normal bony alignment. No compression deformity or bony fracture was identified. No significant degenerative changes were present. c. On 2 April 2007, a Magnetic Resonance Image (MRI) of the lumbar spine without contrast was ordered after the applicant was seen for complains of lower back pain with numbness/tingling along the right lower extremity with diminished strength. A non-contrast MRI of the lower back was requested to rule out the possibility of pathology. d. On 11 April 2007, the report of the MRI of the lumbar spine shows disc disease at lumbar vertebrae L4/5 and L5/S1 with severe bilateral neuroforaminal narrowing (reduction of the size of the opening in the spinal column through which the spinal nerve exists) at L4/5 with moderate left neuroforaminal narrowing. No compression deformity or subluxation was seen. 7. The complete facts and circumstances surrounding the applicant’s discharge are not in his available records for review. 8. His DD Form 214 shows he was discharged on 4 June 2007, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-11, due to failed medical/physical/procurement standards after 4 months and 19 days of net active duty this period. His service was uncharacterized. 9. On 28 January 2020, the Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion, which states: a. Based on the available records submitted by the applicant, there is nothing to support his claim to change his discharge to physical disability discharge. He was found to have physical ailments during his initial entry training, which occurred during the first 6 months of his enlistment. b. It is the opinion of the ARBA medical advisor that the applicant was appropriately discharged from the Army under the provisions of Army Regulation 635-200, paragraph 5-11, for failure to meet medical procurement standards. A copy of the complete medical advisory was provided to the Board for their review and consideration. 10. On 11 February 2020, the applicant was provided a copy of the advisory opinion and given an opportunity to submit comments. He responded on 14 February 2020 and provided two Department of Veterans Affairs (VA) letters, dated 1 February 2019, two DA Forms 705 (Army Physical Fitness Test (APFT) Scorecard), and previously submitted Radiology Results and DD Form 214. In his response, the applicant states: a. He attached a summary of benefits he received from the VA to support his request to change the character of his service from uncharacterized to honorable as a result of physical disability. b. The medical documents he has provided state he had no previous injury prior to joining the service. His APFT Scorecards were provided as verification that he did not fail any APFT and he also never failed a physical examination. c. He would like the character of his service changed to honorable so he will not be hindered in applying for Government jobs. 11. His provided APFT scorecards show he: * failed a diagnostic APFT on 9 February 2007, with a score of 149 out of 300 points * failed a diagnostic APFT on 3 March 2007, with a score of 172 out of 300 points * passed a record APFT on 16 March 2007, with a score of 196 out of 300 points * passed an APFT (diagnostic or record is unclear) on an undocumented date, with a score of 208 out of 300 points 12. His VA letters, dated 1 February 2019, show his character of service for VA purposes is honorable and his combined service-connected disability evaluation was 40 percent effective 1 December 2018. 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, radiology results, the absence of a separation packet and the reason for his separation. The Board considered the review and conclusions of the medical advising official and the applicant’s response that included APFT records and VA documents showing that agency’s characterization of service. The Board notes that Service and VA determinations are independent of each other and governed by different statutes. The Board found he was in an entry-level status at the time of his separation and the Board was unable to find sufficient evidence to refute the reason for his separation. Based on a preponderance of evidence, the Board determined that the reason for his separation and character of service received was not in error or unjust. 2. 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. 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 Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 3. 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. 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 a medical evaluation board (MEB); when they receive a permanent physical profile rating of "3" or "4" in any functional capacity factor and are referred by a Military Occupational Specialty 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 physical evaluation board (PEB). The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his or 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 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 are either 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 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 medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. d. 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. e. 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. 5. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 6. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 5-1 states unless the reason for separation requires a specific characterization, a Soldier being separated for the convenience of the government will be awarded a character of service of honorable, under honorable conditions, or an uncharacterized description of service if in an entry-level status. b. Paragraph 5-11 states Soldiers who were 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 or active duty for training for initial entry training may be separated. Such conditions must be discovered during the first 6 months of active duty. For character of service, paragraph 5-1 should be adhered to. c. Section II (Terms) of the Glossary defines entry-level status for Regular Army Soldiers as the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break of more than 92 days of active military service. 7. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. a. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 8. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have the authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. These two government agencies operate under different policies. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170015403 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1