IN THE CASE OF: BOARD DATE: 23 April 2020 DOCKET NUMBER: AR20190003854 APPLICANT REQUESTS: * an upgrade of her character of service from uncharacterized to honorable * correction of her narrative reason for separation to medical condition/disability instead of failed medical/physical procurement standards * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 2808 (Report of Medical Examination), dated 22 March 2002 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 7 November 2002 * letter (rating decision), Department of Veterans Affairs (VA), dated 25 June 2018 * letter, VA, dated 26 June 2018 * letter, VA, dated 7 January 2019 FACTS: 1. The applicant did not file within the three-year period provided in Title 10, United States Code, section 1552(b); however, the 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, she believes her discharge and characterization of service are in error and unjust, because she did not do anything wrong and did not hide any information from the Military Entry Processing Stations (MEPS). Her medical examination at the Miami MEPS noted the scar on her left thigh and "LE" abnormality on the report of medical examination and cleared her to enlist into military service. a. She contends her condition existed prior to service and has permanently worsened over time after here service. b. She believes she should not be penalized for a mistake made by the MEPS. She wanted to server her country and enlisted after 9/11 and now the error is damaging to her. c. She contends she was made aware that she could do something about the error, which is affecting her negatively, after her VA education training for veterans in 2013 and she started working for VA health care in 2018. 3. A DD Form 2808 (Report of Medical Examination), dated 22 March 2002, contains the following clinical notes: * item 34 (Lower extremities (Except feet)) –normal * item 35 (Feet) – abnormal – Pes Planus, mild, asymptomatic * item 37 (Identifying body marks, scars, tattoos) – well healed laceration left wrist and left thigh * she had defective distance vision and failed an uncorrected depth perception test * she was qualified for service 4. On 26 September 2002, the applicant enlisted into the Regular Army. 5. The applicant's available record is void of a separation packet, separation orders, or an Entrance Physical Standards Board (EPSBD), which would have listed the medical reasons inhibiting her satisfactory performance as a Soldier. However, her record does contains a duly constituted DD Form 214, which shows, on 7 November 2002, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 5-11. She completed one month and twelve days of net service this period. Her DD Form 214 contains the following entries: * block 24 (Character of Service) – Uncharacterized * block 26 (Separation Code) – "JFW" * block 28 (Narrative Reason for Separation) – Failed Medical/Physical Procurement Standards 6. The applicant provides three documents from the VA, including a VA rating decision, dated 25 June 2018, which shows the VA awarded her a combined service connected disability rating of 10 percent for the below medical conditions, noting that these conditions existed prior to service (EPTS), but were permanently worsened as a result of service. * left femur osteocbondroma with limitation of extension status post-surgical repair of fracture * left femur osteochondroma with limitation of abduction, adduction, internal rotation and rotation of the thigh, status post-surgical repair of fracture * left femur osteocbondroma with limitation of flexion status post-surgical repair of fracture 7. Army Regulation 635-200, then in effect, provided the basic authority for the separation of enlisted personnel. Section II (Types of Characterization or Description), paragraph 3-4 (Types Authorized) states for entry level status service will be uncharacterized, and so indicated in block 24 of DD Form 214, except as provided in Paragraph 3-9a. a. Paragraph 3-9a (Entry-level status separation) stated a separation would be described as entry-level with service uncharacterized if processing was initiated while a Soldier was in entry-level status. b. The glossary defines entry level status for Regular Army Soldiers as the first 180 days of continuous active duty (AD) or the first 180 days of continuous AD following a break of more than 92 days of active military service. c. Chapter 5 (Separation for the Convenience of the Government), paragraph 5-11 specifically provided that Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment would be separated. Medical proceedings, regardless of the date completed, must establish that an appropriate military authority identified a medical condition within 4 months of the member's initial entrance on AD or ADT. BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions, her military record, and regulatory guidance were carefully considered. The Board considered, the applicant’s statement, the absence of a separation packet, the VA documents provided by the applicant and the reason for her separation. The Board further considered published DoD guidance for consideration of discharge upgrade requests. Based on a preponderance of evidence, the Board found insufficient evidence of in-service mitigating factors for an upgrade and determined that the applicant’s DD Form 214 properly shows her service as uncharacterized. 3. An uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service. It merely means the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise. As a result, there is no basis for granting the applicant's request. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :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, United States Code, 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 40-501 (Standards of Medical Fitness), then in effect, chapter 2 established physical standards for enlistment, appointment, and induction into the Armed Forces of the United States in accordance with section 133, Title 10, United States. Paragraph 2-11 (Miscellaneous conditions of extremities), then in effect, provided the causes for rejection for appointment, enlistment, and induction which list: a. Osteochondromatosis or multiple cartilaginous exostoses. b. Scar, extensive, deep, or adherent to skin and soft tissues or neuromas of an extremity that are painful, that interfere with muscular movement, that preclude the wearing of military clothing or equipment or show a tendency to break down. 3. Army Regulation 635-200 (Personnel Separation-Enlisted Personnel), then in effect, provides the basic authority for the separation of enlisted personnel. a. Section II (Types of Characterization or Description), paragraph 3-4 (Types Authorized) states for entry level status service will be uncharacterized, and so indicated in block 24 of DD Form 214, except as provided in Paragraph 3-9a. (1) Paragraph 3-9a (Entry-level status separation) stated a separation would be described as entry-level with service uncharacterized if processing was initiated while a Soldier was in entry-level status. (2) The glossary defines entry-level status for Regular Army Soldiers as the first 180 days of continuous active duty (AD) or the first 180 days of continuous AD following a break of more than 92 days of active military service. b. Paragraph 5–1 (Characterization of service or description of separation) states, unless the reason for separation requires a specific characterization, a soldier being separated for the convenience of the Government will be awarded a character of service of honorable, under honorable conditions or an uncharacterized description of service if in entry-level status. c. Paragraph 5–11 (Separation of personnel who did not meet procurement medical fitness standards) states 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 entry on active duty (AD) or active duty training (ADT) for initial entry training, will be separated. Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by appropriate military medical authority within 6 months of the soldier’s initial entrance on AD for RA, or during ADT for initial entry training for the Army National Guard of the United States (ARNGUS) and United States Army Reserve (USAR), which would have permanently or temporarily disqualified him or her for entry into the military service or entry on AD or ADT for initial entry training had it been detected at that time or does not disqualify him or her for retention in the military service under the provisions of AR 40– 501, chapter 3. As an exception, a Soldier who is found after entry on active duty not to have been qualified under procurement medical fitness standards at the time of enlistment may request to be retained in the Service with the exception of existed prior to service (EPTS (pregnancies)). No soldier has a right to be retained under this paragraph. Soldiers not retained will be processed for separation. Soldiers will not be retained under this paragraph unless the separation authority cited in paragraph 1–21c determines, after considering the findings of an Entrance Physical Standards Board that the soldier's disqualifying conditions will not prevent the soldier from performing satisfactorily throughout his or her period of enlistment in the primary military occupational specialty (PMOS) for which being trained. 4. Army Regulation 635–5–1 (Separation Program Designator (SPD) Codes), dated 1 December 2000, in effect at the time prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons. The SPD code was used in statistical accounting to represent the reason for separation. Appendix C (Separation Program Designators Applicable to Enlisted Personnel), Table C-1 (Involuntary Discharge) shows SPD code "JFW" as the proper code for enlisted Soldiers separated by reason of Failed Medical/Physical Procurement Standards under the provisions of Army Regulation 635-200, paragraph 5-11. 5. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR, and provides, in pertinent part, that the ABCMR’s jurisdiction under Title 10, United States Code (USC), extends to any military record of the Department of the Army. a. The regulation provides that the ABCMR staff will determine if the ABCMR has jurisdiction to grant the relief requested. b. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. c. The ABCMR will decide cases on the evidence of record. It is not an investigative body. Applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190003854 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1