ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 August 2019 DOCKET NUMBER: AR20190007909 APPLICANT REQUESTS: The 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” and his narrative reason for separation be changed to show he was discharged as a result of an injury in lieu of, “Failure to Meet Medical Fitness Standards.” APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 * Department of Veterans Affairs (VA) Rating Decision 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. The applicant enlisted in the Regular Army for 4 years on 15 October 1996, at Fort Benning, GA. On 28 October 1996, he was assigned to Company D, 1st Battalion, 19th Infantry for completion of basic combat and advanced individual training under the one station unit training (OSUT) program for an infantry military occupational specialty. 3. His DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings), dated 21 February 1997, shows during his 5th week of training, he was diagnosed to have congenital bipartite patella, which by definition, existed since birth and thus prior to service. This document also shows: a. Subjective Findings: Pain with running, symptoms developed after an injury while in basic training. b. Objective Findings: Tender over the superior lateral aspect of the left patella. c. Laboratory and X-Ray Results: X-rays, medically unfit under paragraph 2-10(d)2, chapter 2, Army Regulation (AR) 40-501. d. Prognosis: Poor e. Diagnosis: Symptomatic bipartite patella left knee f. Disposition: Is recommended that the patient be separated. The Soldier does not meet medical fitness standards for enlistment under the provisions of paragraph 2-10(d)2, chapter 2, AR 40-501 EPTS: Yes. Service aggravated: No. Soldier does not meet retention standards under the provisions of chapter 3, AR 40-501. It is recommended that he be separated from military service under the provisions of paragraph 5-11, AR 635-200. g. Permanent L3 Profile: No running, jumping, and marching. 4. The applicant annotated and signed the EPSBD Proceedings indicating that he agreed with the findings and requested discharge. 5. The complete facts and circumstances surrounding the applicant’s discharge proceedings are not available for review with this case. However, the applicant was discharged on 21 March 1997. The DD Form 214 he was issued at the time 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 5 months and 7 days of active service. 6. The applicant provides a VA Rating Decision, dated 6 May 2019, showing the applicant has a 0 percent rating for service connected disability. 7. 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. 8. The available record is void of all the specific details surrounding his discharge; however, based on the available EPSBD Proceedings he sustained an injury while in basic training [there is no further evidence about this injury in the available evidence] and he was diagnosed with congenital bipartite patella, which by definition, existed at birth and thus prior to service. His condition was identified during his 5th week of training. This appears to have established the basis for his narrative reason for separation. 9. Since his condition was identified within the first 6 months of active service and his condition existed prior to the term of service, his service is appropriately uncharacterized. The characterization of service he received was in compliance with the governing regulation. 10. 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. 11. 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. 12. 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. 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 service record, the absence of an enlistment physical, his medical condition, the review and findings shown on the DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings), the VA Rating Decision and the reason for his separation. The Board found that a congenital condition caused his failure to meet Procurement Medical Fitness Standards and that he was discharged within the first 6 months of entry on active duty. Based on a preponderance of evidence the Board determined that the character of service and the narrative reason for his 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 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 the revised reason or had the upgraded service characterization. ABCMR Record of Proceedings (cont) AR20190007909 5 1