BOARD DATE: 8 October 2019 DOCKET NUMBER: AR20180016234 APPLICANT REQUESTS: In effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 30 April 2003, to show he was honorably discharged and to show he was separated for a condition that existed prior to service (EPTS), caused by a prior service-connected injury he sustained during his 1998 enlistment. 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), with self-authored statement * DA Form 4856 (Developmental Counseling Form), dated 15 April 2003 * Commander’s Memorandum, dated 15 April 2003, subject: Attachment to Medical Holding Detachment * Commander’s Memorandum, dated 16 April 2003, subject: Recommendation for Discharge due to a Pre-Existing Medical Condition * Letter of Support for Commander’s Request, dated 16 April 2003 * Department of Veterans Affairs (VA) summary of benefits, dated 20 November 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, in effect, a. He is considered a disabled veteran by the VA due to a service-connected disability. During his second enlistment, his commander was aware that he had injuries from his prior enlistment and recommended he receive a medical discharge. He recently filed for VA Educational Benefits and the Post 9/11 GI Bill but was denied due to his discharge not being honorable. He needs schooling because of his injuries and his discharge has hurt his career. b. He served two separate enlistments. The first was from 1 July 1998 through 31 August 1998. During this time, he severely injured his back during a training exercise and was discharged due to this injury. The discharge was classified as uncharacterized due to "entry level performance and conduct." There was no mention of the injury or the fact that he was an 18 year old kid fresh out of high school; he didn't think to question this. He was told he would never be eligible for any type of VA benefits, which he later found out to be false. He just knew he was in pain and his back has never been the same since. The VA educational rep stated his 1998 discharge was changed to honorable; however, he never received any notice of that change so he wanted to be sure this time by submitting this application. c. In 2003, he enlisted a second time and reported to Fort Knox, Kentucky for one station unit training (OSUT). He was there from 6 March 2003 through 30 April 2003. At that time, he injured his back again during training exercises, and his shoulder was injured as well. He was discharged again; the discharge document shows he "failed medical/physical procurement standards." He was not informed of this at the time of his discharge. They told him he was being discharged for "existing conditions prior to service" directly related to his service injury from 1998, as he was told by Captain D_ K_, his commanding officer at Fort Knox. CPT K_ stated PV2 F_ had back problems coming into the Army. He received a waiver in order to enter the Army, and is being recommended for a Med-200 discharge. CPT K_ also directly stated that it was a “Condition Existing Prior to Service (EPTS)." d. In both separations, the command acknowledged the injuries he sustained but his DD Form 214 was labeled uncharacterized, followed by notations that employers look upon negatively. In 2016, he filed for VA disability due to fellow veterans explaining his eligibility. He received 50% disability for his back and shoulder from service in 1998 and 2003. He is asking for a review of the additional documents including: Field Manual 22-100 (Leadership); 3 memoranda from CPT K_ stating his injuries were EPTS; and his recommendation of a Med-200 discharge. He has included a VA letter showing his dates of service, percentage of disability, and both dates of service that are considered honorable by the VA. e. He understands the Department of Defense (DoD) is looking at what the command submitted at the time of his separation; it is clearly seen that the back injury suffered in 1998 directly related to his 2003 discharge. He fully intended to fulfill both enlistment contracts and wanted to serve his country as a career. When he was injured (both enlistments), it killed his dreams and has hurt him finding work thus far. He hopes the Board will see a man that wanted to do what is right and serve his country honorably. He now has permanent injuries that require daily medications to get out of bed and a piece of paper that says uncharacterized, which haunts him daily in his career search. He has been denied numerous job opportunities because his discharges are not honorable and he has tried to explain the circumstances of his separation. 3. The applicant enlisted in the Regular Army on 1 July 1998. 4. The applicant's commander notified the applicant on 22 August 1998 that he was initiating actions to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 11, due to entry level status. As reasons for his actions, the applicant's commander cited his refusal to go to Physical Training and Rehabilitation Program (PTRP) sessions and his lack of motivation. 5. The applicant acknowledged receipt of the notification memorandum on 22 August 1998. He elected not to consult with counsel and to not submit a statement in his own behalf. 6. The applicant's commander formally recommended his separation on 22 August 1998, under the provisions of Army Regulation 635-200, Chapter 11. The applicant's commander noted the applicant's repeated counseling and re-training. The separation authority approved the recommendation for discharge on 25 August 1998, and the issuance of an "uncharacterized" discharge. 7. The applicant was discharged on 31 August 1998, under the provisions of Army Regulation 635-200, Chapter 11, due to entry level performance and conduct. He completed 2 months of net active service this period. His DD Form 214 confirms he did not complete OSUT, was not awarded a military occupational specialty (MOS), and his service was uncharacterized. 8. The applicant enlisted in the Regular Army for a second time on 6 March 2003. His entrance documents include the following: a. A DA Form 2808 (Report of Medical Examination), dated 26 August 2002, which shows in: (1) Item 73 (Notes), he had a prior history of low back strain. (2) Item 77 (Summary of Defects Diagnosis), the notation "26 Entry level performance + conduct: pulled back muscle Aug 98." b. A DA Form 2807-1 (Report of Medical History), dated 27 August 2002, which shows in: (1) Item 26, a checkmark in the "yes" column, in response to the question "Have you ever been discharged from military service for any reason?" (2) Item 29 (Explanation of Yes Answers), the entry "26 Sept. 98, Uncharacterized." (3) Item 30a. (Comments), the entry "26. D/C from boot camp training 7/98- 08/98 pulled muscle low back – entry level." c. A DD Form 1966 (Record of Military Processing – Armed Forces of the United States), which shows he received an enlistment waiver for a prior service uncharacterized discharge. 9. The applicant service records contains a DA Form 3349 (Physical Profile), dated 15 April 2003, showing he was placed on a limited duty profile for chronic low back pain, for an EPTS recurrent lumbar strains. 10. A DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings), dated 15 April 2003, shows the applicant was evaluated by an EPSBD and was found medically unfit for enlistment due to a condition(s) that existed prior to her service. The evaluating physician determined he was medically cleared for separation and recommended that he be separated from service under the provisions of Army Regulation 40-501 (Standard of Medical Fitness), Chapter 2, paragraph 2-33. The DA Form 4707 also shows the following: * he concurred with the proceedings and requested to be discharged on 21 April 2003 * his immediate commander recommended that he be discharged on 22 April 2003 and the separation authority approved the commander's recommendation on 25 April 2003 11. The applicant was discharged on 30 April 2003, under the provisions of Army Regulation 635-200, paragraph 5-11, following his completion of 1 month and 25 days of active service. His DD Form 214 shows his service was uncharacterized and his narrative reason for separation was "Failed Medical/Physical Procurement Standards." 12. Soldiers are considered to be in an entry-level status when they are within their first 180 days of active duty service. The evidence of record shows the applicant was in an entry-level status both times he was separated. 13. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his service characterization. The ADRB considered his petition under Docket Number AR20160014254. The ADRB denied his request on 20 October 2017. 14. The applicant provides the following for consideration in his case: * a DA Form 4856, dated 15 April 2003, which shows he was recommended for attachment to the 1st Armor Training Brigade (ATB) Holding Detachment – MED-200 for chronic low back pain, EPTS (recurrent Lumbar Strain) * a memorandum attaching him to the 1st ATB Holding Detachment, dated 15 April 2003 * a Recommendation for Discharge Due to a Pre-Existing Medical Condition, from his commander, and his commander's letter of support for his request, dated 16 April 2003 * VA summary letter of benefits, showing the VA considers his service to be honorable, and they have awarded him a 50% service-connected disability rating 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, his prior discharge and reason, his recurring condition and the reason for his separation. The Board considered his VA summary letter of benefits and that the VA awards benefits under separate criteria and law. The Board found the applicant was in an entry-level status, he requested discharge and was separated for failing to meet Medical/Physical Procurement Standards. The Board found insufficient evidence to show otherwise. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation 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. ADMINISTRATIVE NOTE(S): Not Applicable 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. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states that 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. b. Paragraph 3-7b states that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 5-11 provides that 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 entrance on active duty, active duty for training, or initial entry training, would be separated. A medical proceeding, 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 military service had it been detected at that time, and the medical condition did not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501 (Standards of Medical Fitness). The character of service for Soldiers separated under this provision would normally be honorable but would be uncharacterized if the Soldier was in an entry-level status. An uncharacterized discharge is neither favorable nor unfavorable; in the case of Soldiers issued this characterization of service, an insufficient amount of time would have passed to evaluate the Soldier's conduct and performance. d. Chapter 11 of the regulation in effect at the time provided for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry level status. This provision of regulation applied to individuals who had demonstrated that they were not qualified for retention because they could not adapt socially or emotionally to military life, or because they lacked the aptitude, ability, motivation, or self-discipline for military service, or they had demonstrated characteristics not compatible with satisfactory continued service. The separation policy applied to Soldiers who could not meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline. The regulation required an uncharacterized description of service for separation under this chapter. Separation under Chapter 11 applied to Soldiers who were in an entry level status and, before the date of the initiation of separation action, completed no more than 180 days of continuous active duty and demonstrated that they could not or would not adapt socially or emotionally to military life. e. Entry-level status is defined as the first 180 days of continuous active service for Regular Army Soldiers. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180016234 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180016234 8 ABCMR Record of Proceedings (cont) AR20180016234 6