ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 November 2019 DOCKET NUMBER: AR20180005049 APPLICANT REQUESTS: Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his service is characterized as honorable in lieu of “uncharacterized.” APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 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’s enlistment physical examination is not available for review. On 12 May 1995, he enlisted in the United States Army Reserve for 8 years at the Military Entrance Processing Station (MEPS) Springfield, MA. 3. Orders 96-3, MEPS Springfield, dated 12 May 1995, shows he was ordered to initial active duty for training (IADT) for 27 weeks. His Personnel Qualification Record shows he was assigned to Company B, 4th Battalion, 13th Infantry Regiment, 1st Basic Training Brigade, Fort Jackson, on 28 July 1995, for basic training. He graduated and on 29 September 1995, he was assigned to Fort Gordon, GA, for Advanced Individual Training (AIT). 4. His DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings), dated 4 December 1995 shows: a. CHIEF COMPLAINT: Left shoulder pain with numbness and tingling of left arm. b. HISTORY OF PRESENT ILLNESS: This 20 year old active duty white male has been evaluated at the Connelly Health Clinic on multiple occasions for chronic left shoulder pain and numbness and tingling of his left arm since September 1995. The Soldier was in a bicycling accident prior to entering the military which initially caused the above anti-symptoms. His symptoms have not improved while on active duty despite rest/profiling, inflammatory medications and physical therapy. X-rays of the shoulder are normal however, nerve conduction velocities performed by physical medicine and rehabilitation depict a mild stretch injury of his left axillary nerve caused by the accident. c. PHYSICAL EXAMINATION: - full range of motion of the left shoulder - mild decreased sensation around left deltoid region - no motor deficits - mild tenderness to percussion along deltoid region - decreased muscle strength due to disuse and atrophic changes d. FINAL DIAGNOSIS: Chronic left shoulder pain/stretch injury to left axillary nerve, EPTS: Not Service Aggravated (Unfit under Army Regulation (AR) 40-501, chapter 2, paragraph 2-9, c) e. RECOMMENDATIONS: Though the Soldier meets retention criteria, it is felt to be in the best interest of the Soldier medically, and the U.S. Government, to separate the Soldier from active duty. Therefore, recommend separation under the provisions of paragraph 5-11, AR 635-200. f. PROFILE AND ASSIFENT IMITATIONS: * Temporary Profile Expiration Date: Pending results of board * LIMITATIONS: See DA 3349 - do checked items only * AEROBIC CONDITIONING: Run at own pace and distance * APFT: No APFT * PULHES Code: 31111 5. On 5 December 1995, the findings were approved. 6. On 4 January 1995, the applicant annotated and signed the EPSBD Proceedings indicating that he agreed with the findings and requested discharge. 7. On 9 January 1996, the applicant’s commander recommended separation under the provisions of paragraph 5-11, AR 635-200, with an entry level separation and uncharacterized service. On 17 January 1996, the separation authority approved the applicant’s separation. 8. On 22 January 1996 he was discharged accordingly. The DD Form 214 he was issued shows he was discharged under the provisions of AR 635-200 (Enlisted Personnel), paragraph 5-11. The narrative reason for separation shows, "Failure to Meet Procurement Medical Fitness Standards" and his service was uncharacterized. He completed 8 months and 11 days of active service. 9. The applicant requests his discharge be upgraded to show his service was honorable in lieu of uncharacterized and that his narrative reason for separation be changed to show he was discharged as a result of an injury. 10. Based on his EPSBD Proceedings, prior to entering basic training, he sustained an injury while bicycling. He was evaluated at the Connelly Health Clinic on multiple occasions for chronic left shoulder pain, numbness, and tingling of his left arm since September 1995 (from 12 May 1995 to approximately 1 September 1995 would have been 3 months and 12 days). a. His final diagnosis was chronic left shoulder pain/stretch injury to left axillary nerve, EPTS, Not service aggravated. His condition appears to have been identified within his first 3 months of training, which would have established the basis for his narrative reason for separation. Since his condition was identified within the first 6 months of active service and was determined to have been an EPTS condition, the uncharacterized characterization is correct and commensurate with the governing regulation. b. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 5, provides, in pertinent part, that if a Soldier is processed for failure to meet procurement medical fitness standards within the first 6 months of entry on active duty and the condition existed prior to the term of service, then the Soldier will be discharged in an entry level status with uncharacterized service. 14. An uncharacterized discharge is not meant to be a negative reflection of a Soldier's military service. It merely means the Soldier has not served on active duty long enough for his or her character of service to be rated. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: The Board found that the applicant had served in excess of 180 days on active duty which qualified him for a character of service other than uncharacterized. AR 635-200, paragraph 5-11 requires an uncharacterized discharge only if the Soldier is discharged within the first 180 days of service. The Board found no conduct less than fully honorable in his record. His character of service should be Honorable for his 8 months and 11 days of active service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XXX :XXX :XXX GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing his character of service as Honorable on his DD Form 214 for the period ending 22 January 1996. 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. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation. Chapter 2 provides the physical standards for enlistment/induction. This chapter prescribes the medical conditions and physical defects that are causes for rejection for appointment, enlistment, and induction into military service. Unless otherwise stipulated, the conditions listed in this chapter are those that would be disqualifying by virtue of current diagnosis, or for which the candidate has a verified past medical history. Other standards may be prescribed by Depart of Defense in the event of mobilization or a national emergency. 3. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. It states according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion they must have existed or have started before the individual entered military service. Examples are manifestation of lesions or symptoms of chronic disease from date of entry on active military service (or so close to that date of entry that the disease could not have started in so short a period) will be accepted as proof that the disease existed prior to entrance into active military service. 4. AR 635-40, chapter 5, provides, in pertinent part, that if a Soldier is processed for failure to meet procurement medical fitness standards within the first 6 months of entry on active duty and the condition existed prior to the term of service, then the Soldier will be discharged in an entry level status with uncharacterized service. 5. AR 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for separation of enlisted personnel. Paragraph 5-11 specifically provides that Soldiers who are 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, active duty for training, or initial entry training will be separated. A medical proceeding conducted by an EPSBD, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within six months of the Soldier's initial entrance on active duty, that the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at the time of enlistment, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of AR 40-501, chapter 3. The characterization of service for Soldiers separated under this provision will normally be honorable, but will be uncharacterized [entry level status] if the Soldier has not completed more than 180 days of creditable continuous active duty service prior to the initiation of separation action. 6. AR 635-200 also describes the different types of characterization of service. a. An uncharacterized separation is an entry-level separation. A separation will be described as an entry-level separation if processing is initiated while a member is in an entry-level status, except when characterization under other than honorable conditions is authorized as the reason for separation and is warranted by the circumstances of the case or when the Secretary of the Army, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. For Regular Army Soldiers, entry-level status is defined as the first 180 days of continuous active service. b. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 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. 7. AR 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty. The primary purpose of the separation codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of Department of Defense and the military services to assist in the collection and analysis of separation data. The "JFW" SPD code is the correct code for members separating under the provisions of paragraph 5-11 of AR 635-200 by reason of failure to meet procurement medical fitness standards. 8. 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 //NOTHING FOLLOWS//