ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 23 September 2019 DOCKET NUMBER: AR20180015197 APPLICANT REQUESTS: correction of the following items on her DD Form 214 (Certificate of Release or Discharge from Active Duty): * Item 24 (Character of Service) – change "Uncharacterized" to "Honorable" * Item 28 (Narrative Reason for Separation) – revise "Condition, Not a Disability" to "Condition that is Service-Connected" APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Three Department of Veterans Affairs (VA) letters FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 she believes her record is in error or unjust because she had to appeal the fact she was honorably discharged, as a result of a service-connected disability; on 11 September 2015, she won her appeal, and is currently receiving disability compensation at a 30 percent disability rating. 3. The applicant provides three VA letters, which show the following: * 16 April 2018 – announcing VA's decision pertaining to the applicant's Notice of Disagreement; effective 27 August 2014, VA awarded the applicant a 10 percent disability rating for migraine headaches; the rating was increased to 30 percent, effective 11 September 2015 * 18 July 2018 – VA provided a summary of benefits; for VA purposes, the VA showed the applicant's character of service as honorable for the period ending 26 August 2014; VA awarded a 30 percent service-connected disability rating * 18 July 2018 – VA provided a letter certifying the applicant was receiving service- connected disability compensation; the letter specified the amount, and that it was effective 1 December 2017 4. The applicant's service records show: a. On 4 December 2013, as part of her enlistment into the Regular Army, the applicant completed a DD Form 2807-2 (Medical Prescreen of Medical History Report). The form listed 75 potentially disqualifying physical and behavioral issues, and asked if the applicant ever had, or was at that time having, any of the listed concerns. Included was a question asking if the applicant had frequent or severe headaches that had caused a loss of time from work or school. The applicant answered "No" to this and all remaining questions. b. On 13 December 2013, the applicant completed a DD Form 2807-1 (Report of Medical History); the form required the applicant to answer "Yes" or "No" to questions pertaining medical/behavioral concerns; the applicant did not identify any medical issues and affirmed she was in good health. As on the aforementioned DD Form 2807-2, she answered "No" to the question that addressed frequent or severe headaches. On that same date, the applicant underwent a pre-enlistment medical examination; the examining physician verified she was qualified for entry on active duty. c. On 16 June 2014, she enlisted into the Regular Army for a 5-year term; she was 26 years old. Orders assigned her to Fort Jackson, SC for basic combat training (BCT); she arrived on 21 June 2014. d. On 4 August 2014, an Army Physician's Assistant-Certified (PA-C) submitted a memorandum to the applicant's BCT commander in which he stated, over the past 10 days, the applicant had been evaluated and treated for "a constant, migrating headache"; the applicant's headache had not responded to treatment. (1) The PA-C further stated the applicant reported having a history of migraines prior to entry on active duty, but was unable to provide corroborating medical documentation. Unit personnel had reported to the PA-C that, as a result of her headaches, the applicant was unable to participate in mandatory basic training events. (2) The PA-C recommended the applicant's separation under paragraph 5-17 (Other Designated Physical or Mental Conditions), Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations). The PA-C noted the absence of prior documentation to substantiate an EPTS (existed prior to service) discharge, and he validated that no service-related event had caused her current medical condition (i.e. migrating/migraine headache). e. On 4 August 2014, the applicant's senior drill sergeant prepared a DA Form 4856 (Developmental Counseling Form), wherein he stated his agreement with the medical provider's professional recommendation for separation, based on the applicant's constant migraine headache. The senior drill sergeant was recommending the commander initiate separation action; the applicant indicated she agreed with her senior drill sergeant's counseling. f. On 5 August 2014, the applicant's BCT commander told the applicant, in a DA Form 4856, of his intent to initiate separation action. Her commander stated the applicant's constant headaches had prevented the applicant from participating in mandatory BCT events. The DA Form 4856 shows the applicant concurred with her commander's counseling. g. On 12 August 2014, the applicant's BCT commander advised her via memorandum of his intent to separate the applicant under the provisions of paragraph 5-17, AR 635-200. The commander's reason was the applicant had been unable to complete her training due to migraine headaches. h. On 12 August 2014, after consulting with counsel, the applicant acknowledged counsel had advised her of the basis for her separation action, her rights under the separation process, and the effect of waiving those rights. The applicant elected to waive her right to counsel and chose not to submit a statement in her own behalf. i. On 19 August 2014, the separation authority approved the commander's recommendation and directed the applicant's uncharacterized discharge; on 26 August 2014, she was discharged accordingly. Her DD Form 214 shows she completed 2 months and 11 days of her 5-year enlistment contract. Her DD Form 214 also reflects the following additional information: * Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) – None * Item 25 (Separation Authority) – AR 635-200, paragraph 5-17 * Item 26 (Separation Code) – "JFV" * Item 28 (Narrative Reason for Separation) – "Condition, Not a Disability" 5. The applicant requests her character of service be changed from uncharacterized to honorable, and the narrative reason for separation be amended to show her disability was service-connected. In support of her requests, she includes VA documents, which affirm, for VA purposes, VA determined her service was honorable; in addition, VA awarded her a service-connected disability rating of 30 percent for her migraine headaches. a. AR 635-200, in effect at the time, required commanders to initiate separation action against Soldiers who had physical or mental conditions that did not amount to a disability, as defined in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), and which did not include conditions more appropriately handled under paragraphs 5-11 (Separation of Personnel who Did Not Meet Procurement Medical Fitness Standards) or 5-13 (Separation Because of Personality Disorder). Paragraph 5-17 included other disorders, such as those manifested by disturbances of perception, thinking, emotional control, or for behavioral conditions that were severe enough to affect the Soldier's ability to perform military duties. b. Effective 1 October 1982, AR 635-200 required Soldiers in an entry-level status (i.e. the first 180 days months of continuous active duty service) to receive an uncharacterized character of service upon discharge. c. The applicant implies, because the VA, for its purposes, determined her service to be honorable, her record should be corrected accordingly. (1) The VA and the Army operate under separate provisions of Federal law (respectively Title 38 (Veterans' Benefits) and Title 10). As such, each makes independent determinations, based upon the requirements set forth within their respective parts of the law. (2) Decisions made by the VA, with respect to a Soldier's character of service or the service-connection of a specific disability, are not binding on the Army, and do not reflect that determinations made by the Army were wrong. 6. Regarding the applicant's request to change the narrative reason for separation: a. AR 635-8 (Separation Processing and Documents) prescribes policies and procedures for the DD Form 214. It states item 24 will show the character of service, as directed by the directive authorizing separation; AR 635-5-1 (Separation Program Designator (SPD) Codes) is the source for completing items 26 and 28. b. Per AR 635-5-1, in effect at the time, stated Soldiers separated under the provisions of paragraph 5-17, AR 635-200 were assigned the SPD "JFV"; the associated entry required for item 28 was "Condition, Not a Disability." 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, her record and length of service, the counseling in her record, Army Physician's Assistant-Certified memorandum and the applicant’s report of pre-service headaches and the reason for her separation. The Board considered applicant’s entry-level status at the time of her separation and the post-service ratings assigned to the applicant by the VA. The Board did not find evidence of service-related event specific to her condition. Based on a preponderance of evidence, the Board determined that the character of service and the reason for the applicant’s separation was not in error or unjust. The Board concurred with the correction stated in the Administrative Note(s) below. 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, except for the correction stated in the Administrative Note(s) that follow, 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): 1. AR 635-8 (Separation Processing and Documents) prescribes policies and procedures for the DD Form 214. It states item 13 will show all Federally-recognized awards and decorations for all periods of service. 2. The applicant's Enlisted Record Brief affirms the applicant's award of the National Defense Service Medal. 3. As a result, amend the applicant's DD Form 214, ending 26 August 2014, by adding the National Defense Service Medal. REFERENCES: 1. Title 10, USC, 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 ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200 set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge). An honorable character of service represented a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service had generally met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b (General Discharge) stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-9 (Uncharacterized Separations). Soldiers separated in an entry- level status receive an uncharacterized character of service (a separation was an entry level status separation if its processing is initiated during the Soldier's first 180 days of continuous active duty). Headquarters, Department of the Army could, on a case-by- case basis, issue an honorable character of service to entry-level Soldiers when clearly warranted by unusual circumstances involving personal conduct or duty performance. d. Paragraph 5-17 (Other Designated Physical or Mental Conditions). Commanders were authorized to separate Soldiers on the basis of other physical or mental conditions that did not amount to a disability, per AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), and which did not include conditions more appropriately handled under paragraphs 5-11 (Separation of Personnel who Did Not Meet Procurement Medical Fitness Standards) or 5-13 (Separation Because of Personality Disorder). (1) Included conditions were: * Chronic airsickness * Chronic seasickness * Sleepwalking * Dyslexia * Severe nightmares * Claustrophobia * Other disorders manifesting disturbances of perception, thinking, emotional control, or behavior that are sufficiently severe so as to affect the Soldier's ability to perform military duties (2) When commanders determined the Soldier had a qualifying physical condition, the commander was to refer the Soldier for a medical examination; a separation recommendation had to be supported by documentation that confirmed the existence of the physical condition. (3) Separation processing could not be initiated until the Soldier had been formally counseled as to his/her deficiencies, and had been afforded ample opportunity to overcome those deficiencies. 3. 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. 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 on the basis of 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. 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. 4. AR 635-8 prescribes policies and procedures for the completion of the DD Form 214. It states item 24 will show the character of service, as directed by the directive authorizing separation; AR 635-5-1 (Separation Program Designator (SPD) Codes) is the source for completing items 26 and 28. 5. AR 635-5-1, in effect at the time, stated Soldiers separated under the provisions of paragraph 5-17, AR 635-200 were assigned the SPD "JFV" on the DD Form 214; the required entry in item 28 of the DD Form 214 was "Condition, Not a Disability." //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180015197 5 1