IN THE CASE OF: BOARD DATE: 31 July 2020 DOCKET NUMBER: AR20180008557 APPLICANT REQUESTS: her uncharacterized discharge be changed to a medical separation or medical retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 2870 (Authorization for Disclosure of Medical or Dental Information) * Request for4 Congressional Inquiry and Privacy Release * 2 DD Forms 214 (Certificate of Release or Discharge from Active Duty) * Itinerary/Invoice * Orders * Medical documents * memorandums FACTS: 1. The applicant states she was not given copies of her medical records upon her departure from the military. 2. The applicant enlisted in the Army National Guard on 19 December 2017. She was ordered to active duty for training and entered active duty on 22 January 2018. 3. On 14 March 2018, the applicant was notified by her immediate commander of his intent to initiate action to separate her under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17 for other designated physical or mental conditions. The reason for the proposed action was the applicant had suffered a neck/back injury during 2 falls and there had been no improvement with physical therapy. She was advised of her rights and informed he recommended she receive an uncharacterized separation. 4. On 16 March 2018, the applicant acknowledged being advised by her consulting counsel of the basis for the contemplated action to separate her. She waived consulting counsel and representation by military/civilian counsel and did not submit statements in her own behalf. 5. On 20 March 2018, the appropriate authority directed her uncharacterized discharge under the provisions of Army Regulation 635-200, paragraph 5-17 due to other designated mental conditions. 6. On 26 March 2018, the applicant was discharged in accordance with Army Regulation 635-200, paragraph 5-17, for a condition, not a disability. She completed 2 months and 5 days of net active service. Her service was uncharacterized. 7. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant's records in iPERMS, the Armed Forces Health Longitudinal Technology Application (AHLTA), Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV) and made the following findings and recommendations: The applicant is requesting her uncharacterized discharge be changed to a medical separation or medical retirement. The applicant enlisted in the ARNG on 19 December 2017, and entered initial entry training (IET) on 22 January 2018. She asserts that she sustained a back and shoulder injury as a result of two falls that occurred during basic combat training (BCT) that resulted in “narrowing disc extrusion pinching down on her spinal cord, and calcification from injuring her shoulder.” She further alleges that Ft. Leonard Wood “covered up” her medical condition and did not provide her with a copy of her medical records upon her separation from the Army. The applicant was separated on 26 March 2018 with an uncharacterized character of service IAW AR635-200, Chapter 5-17, for “other designated physical or mental conditions.” Review of the applicant’s AHLTA record indicates that she underwent a plain radiograph of her thoracic spine on 30 January 2018 that was reportedly without any abnormality that could account for the applicant’s symptoms. An MRI of her cervical spine on 6 February 2018 that reportedly demonstrated a small posterior disc extrusion at the C5-C6 level without neural foraminal or spinal canal narrowing. An MRI of her lumbar spine on 22 February 2018 that reportedly was completely normal. A temporary profile issued on 23 February 2018 with an expiration date of 10 March 2018 indicated that the applicant had a high severity of symptoms that did not correlate with the MRI findings of her neck or back. Medically, it’s highly unlikely that the minimal changes noted in the cervical spine MRI would have caused the subjective symptoms that the applicant complained of and would likely not have resulted from the applicant’s reported falls. Another temporary profile with an expiration date of 28 March 2018 indicated that the applicant had not improved with physical therapy, and the profiling officer recommended that the applicant’s Chain of Command initiate the Chapter 5-17 separation process. The applicant was medically cleared to separate. A memorandum dated 5 March 2018 stated that the applicant’s reported injury did not meet the criteria for a line of duty investigation IAW AR600-8-4, Chapter 2-3, part B. The applicant was notified of the Commander’s intent to initiate separation action IAW AR635-200, Chapter 5-17 on 14 March 2018 with an uncharacterized character of service. The applicant had completed less than 180 days on active duty in the Army at the time of her separation. Therefore, based on the available information, it is the opinion of the Agency Medical Advisor that insufficient evidence exists to warrant a change in the character of the applicant’s discharge for medical reasons or referral to the DES for consideration of military medical retirement is not indicated. 8. 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. 9. 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. 10. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 3 states a separation will be described as entry level with uncharacterized service if the Soldier is in an entry-level status at the time separation action is initiated. Paragraph 5-17 states a service member may be separated for other designated physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty. ? BOARD DISCUSSION: After review of the application and all evidence, including the applicant’s statements, supporting documents, and the ARBA Medical Advisory Opinion, the Board determined there is insufficient evidence to grant relief. The applicant has requested that her discharge characterization be changed from uncharacterized to a medical separation or medical retirement. The Board found no error or injustice in the applicant's discharge characterization. The applicant was separated on 26 March 2018 with an uncharacterized character of service IAW AR635-200, Chapter 5-17, for “other designated physical or mental conditions.” A memorandum dated 5 March 2018 stated that the applicant’s reported injury did not meet the criteria for a line of duty investigation IAW AR600-8-4, Chapter 2-3, part B. The applicant was notified of the Commander’s intent to initiate separation action IAW AR635-200, Chapter 5-17 on 14 March 2018 with an uncharacterized character of service. The applicant had completed less than 180 days on active duty in the Army at the time of her separation. Therefore, based on the available information, the Board agreed with the ARBA Medical Advisor that insufficient evidence exists to warrant a change in the character of the applicant’s discharge for medical reasons or referral to the DES for consideration of military medical retirement. 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. REFERENCES: 1. 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 DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS 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 PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/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 or not 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 either are 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 a 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 a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 2. 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. 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. b. 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. 3. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 states a separation will be described as entry level with uncharacterized service if the Soldier is in an entry-level status at the time separation action is initiated. b. Paragraph 5-17 states a service member may be separated for other designated physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty. A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition. Members may be separated for physical or mental conditions not amounting to disability sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired. A Soldier being separated under this section will be awarded a character of service of honorable, under honorable conditions, or an entry- level separation. 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. For ARNG and USAR Soldiers, entry-level status begins upon enlistment in the ARNG or USAR. For Soldiers ordered to IADT for one continuous period, it terminates 180 days after beginning training. For Soldiers ordered to IADT for the split or alternate training option, it terminates 90 days after beginning Phase II of Advanced Individual Training. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180008557 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1