IN THE CASE OF: BOARD DATE: 17 August 2020 DOCKET NUMBER: AR20180004996 APPLICANT REQUESTS: Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 23 November 1990, to show he was medically discharged instead of showing he was discharged by reason of physical disability with entitlement to severance pay. 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), dated 23 February 2018 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b). However, the Army Board for Correction of Military Records (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 is not permitted to reenlist because his DD Form 214 shows he was discharged due to disability with severance pay. 3. The applicant enlisted in the Regular Army on 15 January 1986. He reenlisted in the Regular Army on 19 September 1988 for a period of four years. 4. The applicant's service record includes a DA Form 3349 (Physical Profile), dated 31 January 1990, which indicates he was issued a permanent profile following left knee anterior cruciate ligament (ACL) reconstruction. 5. The applicant's immediate commander and non-commissioned officer in charge (NCOIC) recommended that he either be reclassified into a different military occupational specialty (MOS) or referred to the Army Physical Disability Evaluation System (PDES), due to his significant physical limitations and the demands of his current MOS, which was 11B (Infantryman). 6. An MOS/Medical Retention Board (MMRB) convened on 29 March 1990. The board determined the applicant was in receipt of a permanent profile prohibiting him from performing the duties of any MOS in a worldwide field environment and further recommended referral to the PDES. 7. A memorandum issued by Headquarters, Fort Devens, Fort Devens, Massachusetts, dated 3 May 1990, directed that the applicant be scheduled for a medical evaluation board (MEB). 8. A completed DA Form 3947 (MEB Proceedings), dated 4 October 1990, indicates the applicant was diagnosed with persistent, mild instability, loss of full range of motion and chondromalacia patella in his left knee post injury with ACL reconstruction. Both conditions were determined to have been incurred while entitled to basic pay. He concurred with the MEB findings on 17 October 1990 and was referred to a physical evaluation board (PEB). 9. The PEB convened on 24 October 1990. The relevant DA Form 199 (PEB Proceedings) indicates the board found the applicant physically unfit, recommended a combined disability rating of 10 percent (%) and separation from service with severance pay. The applicant concurred with the PEB findings and waived a formal hearing of his case on 21 October 1990. 10. The applicant was honorably discharged on 23 November 1990, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24e (3), by reason of physical disability with entitlement to severance pay. The DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms the following entries: * Item 26 (Separation Code) - JFL * Item 27 (Reentry Code) - RE-3 * Item 28 (Narrative Reason for Separation) – Physical disability with severance pay 11. 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 requesting that the reason for his 23 November 1990 discharge for physical disability be changed to a “medical discharge” so that he will be eligible to reenlist. The Record of Proceedings outlines the applicant’s military service and the circumstances of the case. His DD 214 shows the he entered the regular Army on 15 January 1986 and was honorably discharged on 23 November 1990, being separated with disability severance pay under the authority provided by paragraph 4-24b(3) of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (1 September 1990). The supporting medical documentation shows he ruptured his left knee anterior cruciate ligament (ACL) in November 1987, and after continuing to experience episodes of instability following rehabilitation, he underwent an ACL reconstruction on 11 July 1989. Persistent pain with decreases in both knee range of motion and function caused him to receive a permanent physical profile in January 1990. His case was reviewed by an MOS/Medical Retention Board in April 1990, and the board referred him to the Physical Disability Evaluation System. In October 1990, the medical evaluation board found his left knee condition to fail medical retention standards and he was referred to a physical evaluation board. On 24 October 1990, the physical evaluation board found his left knee condition to be unfitting for continued service. The applicant concurred with this finding on 31 October 1990 and was separated with severance pay on 23 November 1990. There is no evidence the condition has improved to the point where it would no longer be an unfitting condition. Review of the electronic medical records show the applicant has multiple chronic health issues which would likely fail enlistment standards. It also reveals the applicant underwent a left total knee arthroplasty in November 2018, a condition which does fail enlistment standards. Based on the current evidence, it is the Agency Medical Advisor’s opinion that a change in the reason for discharge as noted on his DD 214 is not warranted. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found insufficient evidence to grant relief. The Board carefully considered the applicant’s request to change the reason for his 23 November 1990 discharge for physical disability to read “medical discharge” so that he will be eligible to reenlist. The Board found the preponderance of the evidence, including the Medical Advisory opinion, indicates that the applicant’s knee condition was unfitting at time of service and the applicant’s current health conditions would likely fail enlistment standards. The record also indicates that the applicant underwent a left total knee arthroplasty in November 2018, a condition which fails enlistment standards. Therefore, the Board found that relief isn’t warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX 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 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. Title 10, USC, Section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%. 3. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Conditions that fail retention standards are referred to a medical evaluation board. 4. Army Regulation 601–210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for the Active Army and Reserve Component enlistment program. Table 3-1 (U.S. Army RE Eligibility Codes) includes a list of the RE codes. The regulation further states an RE code is not upgraded unless it was administratively incorrect when originally issued. a. RE code "1" applies to personnel who have completed their obligated term of active service and are considered qualified to reenter the U.S. Army if all other criteria are met. b. RE code "3" applies to personnel who are not considered fully qualified for reentry or continuous service at time of separation, but whose disqualification is waivable. They are ineligible unless a waiver is granted. c. RE code "4" applies to personnel separated from last period of active duty service with a nonwaivable disqualification. 5. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations that identify reasons for and types of separation from active duty. The separation code "JFL" is the correct code for Soldiers separating under Army Regulation 635-40, paragraph 4-24e (3). 6. Army Regulation 635-40 establishes the Army PDES 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 or her office, grade, rank, or rating. It provides that 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 qualifications for retention based on the criteria in Army Regulation 40-501. 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 service. a. Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability. It states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. b. Paragraph 3-5 contains guidance on rating disabilities. It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. 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. c. Paragraph 4-24 provides for the final disposition instructions of disability evaluation cases. Based upon the final decision of the CG, USAPDA. or the ADPAB, the CG, MILPERCEN will issue orders for permanent retirement for physical disability, placement on the Temporary Disability Retired List (TDRL), separation for physical disability with severance pay, separation for physical disability without severance pay, transfer to the inactive Reserve on request, separation for physical disability without severance pay when the disability was incurred as a result misconduct, neglect, or during an unauthorized absent, release from active duty and return to retired status if applicable, or return to duty when determined physically fit. 7. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180004996 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180004996 5 ABCMR Record of Proceedings (cont) AR20180004996 4