ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
Record of Proceedings


IN THE CASE OF: 
BOARD DATE: 31 August 2020 
DOCKET NUMBER: AR20190009167

APPLICANT REQUESTS: The applicant, in effect, requests that his uncharacterized 
characterization of service for failure to meet procurement medical fitness standards be 
changed to an honorable under medical conditions.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

   *	DD Form 149 (Application for Correction of Military Record) 
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 states he enlisted in the Army and the doctors said he was fit for duty. 
His injury to his back, which occurred in basic training (BT), caused him to be 
discharged. He would like his DD Form 214 (Certificate of Release or Discharge from 
Active Duty) to reflect an honorable under medical conditions or at least an honorable 
so he could receive the benefits he deserves. He was fine when he enlisted. His 
lawyer said if the doctor found him fit for duty when going into the Army and then he 
injured himself in BT, he should receive an honorable discharge under medical 
conditions. Due to his incarceration at the time, he had no way to obtain his medical 
records but he knows they are on file for the Board to see. He gives his permission for 
this office to obtain his medical records.

3.	On 6 March 1995, in connection to his enlistment, the applicant completed a SF 93 
(Report of Medical History), which he indicated he was in good health; at the time, he 
was not on any medications, and he had no known allergies. For item 11 (Have you 
ever had or have you now) he initially marked ?no? and then changed his answer to
?yes?, regarding recurrent back pain. He indicated he had his tonsils removed when he 
was six years old. He denied any significant medical history. On the same date, he 
underwent a medical examination and the doctor indicated the areas evaluated during 
his clinical evaluation were normal; however, his eyes were defective. The doctor 
qualified the applicant for enlistment.





4.	On 9 November 1995, at the age of 18 years old, the applicant enlisted in the 
Regular Army for a term of 3 years.

   a.	The Report of Medical History he completed as part of his entrance requirement 
shows he initially checked "NO" which is marked out with initials that are not the 
applicant’s and a clear check mark is placed under "Yes" under item 11 (Have You Ever 
Had or Have You Now" – Recurrent Back Pain.

    b.	His Report of Medical Examination shows he received a clinical evaluation and 
a medical officer identified his clinical evaluation exam as normal and cleared him for 
enlistment. The report does not show the medical officer included any notes or 
information regarding his entry for recurrent back pain.

5.	On 17 November 1995, he was assigned to his BT unit at Fort Knox, KY. On
8 December 1995, an entrance physical standards board (EPSBD) proceeding found 
that the applicant was medically unfit for enlistment in accordance with current medical 
fitness standards and the condition(s) existed prior to service. A waiver was not 
recommended.

   a.	The doctor stated the applicant, 8 to 12 weeks prior to his enlistment, while 
working as a construction worker, pouring concrete and moving blocks and splitting 
wood, sustained an injury to his lower back. He stated he did tell the recruiting officer 
about the problem, and was advised by the recruiting officer not to mention too much 
about it since it was probably a ?strain? and nothing more. Since entering the Army, the 
physical training and other soldierly exercises had proven to be more than he could 
handle, and his back had been hurting him in ever-increasing amounts. He visited the 
troop medical clinic and was placed on Motrin.

   b.	On examination, there was mild swelling and marked spasm of the paravertebrals 
on both sides of the lower lumbar spine. He had a limitation of range of motion 
secondary to pain. X-rays demonstrated some loss of the lumbar lordotic curve, which 
indicated moderate to severe spasm. The board recommended since his condition was 
pre-existing to his enlistment into the Armed Forces and was demonstrating a 
constitution into an impairment for his performance of his active duties, and there were 
other personal problems with which he had chosen not to confide in them. The doctor 
felt that according to Army Regulation (AR) 40-501 (Medical Services – Standards of 
Fitness), Chapter 3-39, the applicant was unfit for active duty.

   c.	The applicant concurred with the proceedings and requested to be discharged 
from the Army without delay. The commander endorsed the request and on 17 January 
1996 the appropriate authority approved the separation.
   



6.	On 22 January 1996, the applicant was discharged accordingly. His DD Form 214, 
(Certificate of Release or Discharge from Active Duty), shows he was separated 
according to AR 635-200 (Personnel Separations – Enlisted Separations), paragraph 5- 
11 for failure to meet medical procurement standards with an uncharacterized 
characterization of service. He completed 2 months and 14 days of his 3-year 
contractual obligation.

7.	In regards to the applicant granting this office permission to obtain his medical 
records, the burden falls on the applicant to obtain his own medical records and furnish 
them to the Board. We recommend that he contact his Department of Veteran Affairs 
(VA) Regional Office for assistance and/or the National Personnel Record Center.

8.	The applicant states his lawyer said if the doctor found him fit for duty when going 
into the Army and then he injured himself in BT, he should receive an honorable 
discharge under medical conditions.

   a.	The available evidence shows that the applicant was inducted and properly 
identified recurring back pain during his medical entrance examination; however, a 
medical officer failed to address the medical issue reported and medically cleared the 
applicant for enlistment as "normal and fully" qualified which resulted him undergoing 
EPSBD proceedings within 18 days of his enlistment and diagnosed with Lumbar strain.

   b.	He did indicate recurring back pain on his entrance medical history and a medical 
officer failed to address His record shows within 18 days of his enlistment he was 
referred to AR 635-200, in effect at the time, stated commanders were to separate 
Soldiers who were not medically qualified under procurement medical fitness standards 
when they enlisted. EPSBD proceedings regardless of the date completed had to 
establish the following: that medical authority had identified the disqualifying medical 
condition(s) within 6 months of the Soldier's initial entry on active duty; that the 
condition(s) would have permanently disqualified the Soldier from entry into military 
service, had they been detected earlier; and that the medical condition did not disqualify 
him/her for retention in military service. A Soldier disqualified under this provision could 
request retention on active duty; the separation authority made the final determination.

9.	The record shows he received an uncharacterized character of service because he 
was separated while in an entry level status (within 180 days of date entered on active 
duty).

10.	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.




11.	AR 40-501 (Standards of Medical Fitness) provides a listing of all medical 
conditions and specific causes for referral to an MEB, medical conditions and physical 
defects which may render a Soldier unfit for further military service. The medical 
conditions and physical defects, individually or in combination, are those, that 
significantly limit or interfere with the Soldier's performance of their duties; may 
compromise or aggravate the Soldier's health or well-being if they were to remain in the 
military Service; may compromise the health or well-being of other Soldiers; and/or may 
prejudice the best interests of the Government if the individual were to remain in the 
military Service. Conditions listed in Chapter 3, who do not meet the required medical 
standards will be evaluated by an MEB.

12.	AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), states 
the mere presence of an impairment does not, itself, justify a finding of unfitness 
because of physical disability. In each case it is necessary to compare the nature and 
degree of physical disability present the requirements of the duties the Soldier 
reasonably may be expected to perform because of their office, grade, rank or rating. 
To ensure all solders are physically qualified to perform their duties in a reasonable 
manner, medical retention qualification standards have been established in Army 
Regulation 40-501.

      a.	Paragraph 3 (Standards of Unfitness because of Physical Disability) provides 
when a soldier enters the military with a waiver for a medical condition or physical 
defect, and the condition represent a decided medical risk which would probably 
prejudice the best interests of the Government were the soldier to remain in military 
service, separation without benefits may be appropriate, if initiated within 6 months of 
initial entry on active duty. Entry physical standards will be used in separating 
individuals with pre-existing medical conditions. Such cases will be referred to a PEB to 
determine if the pre-existing condition has been service aggravated.

    b.	Presumptions. The following presumptions will apply to physical disability. 
Before and after service:

*	A soldier was in sound physical and mental condition upon entering active 
service except for disabilities noted and recorded at the time of entry
*	Any disease or injury discovered after a soldier entered active service, with 
the exception of congenital and hereditary conditions, was not due to the 
soldier's intentional misconduct or willful neglect and was incurred in the line 
of duty (LOD).

13.	Title 10, U.S. Code, chapter 61, provides for the retirement and discharge of 
members of the Armed Forces who incur a physical disability in the line of duty while 
serving on active or inactive duty. However, the disability must have been the 
proximate result of performing military duty. It further provides for disability retirement




or separation for a member who is physically unfit to perform the duties of his office, 
rank, grade, or rating because of disability incurred while entitled to basic pay.

14.	The Army rates only conditions determined to be physically unfitting at the time of 
discharge, which disqualify the Soldier from further military service. The Army disability 
rating is to compensate the individual for the loss of a military career. The VA does not 
have authority or responsibility for determining physical fitness for military service. The 
VA may compensate the individual for loss of civilian employability.

15.	Title 38, USC, Sections 1110 and 1131, permit the VA to award compensation for 
disabilities which were incurred in or aggravated by active military service. However, an 
award of a VA rating does not establish an error or injustice on the part of the Army.

16.	Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards 
disability ratings to veterans for service-connected conditions, including those conditions 
detected after discharge. As a result, the VA, operating under different policies, may 
award a disability rating where the Army did not find the member to be unfit to perform 
his duties. Unlike the Army, the VA can evaluate a veteran throughout his or her 
lifetime, adjusting the percentage of disability based upon that agency's examinations 
and findings.

17.	In reaching its determination, the Board can consider the applicant's petition, his 
service record, and his statements in light of the published guidance on equity, injustice, 
or clemency.

18.	Based on the applicant's reference to a medical condition(s) being the basis of his 
separation, the Army Review Board Agency medical staff provided a medical review for 
the Board members. See the "MEDICAL REVIEW" section."

MEDICAL REVIEW:

1.	The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this 
case. Documentation reviewed included the applicant’s ABCMR application and 
accompanying documentation, the military electronic medical record (AHLTA), the VA 
electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the 
Medical Electronic Data Care History and Readiness Tracking (MEDCHART) 
application, and the Interactive Personnel Electronic Records Management System 
(iPERMS).

2.	When he competed his pre-entrance Report of Medical History in March 1995, the 
applicant marked “Yes” to the question “Have you ever had or have now recurrent back 
pain.” The remainder of this form and the accompanying Report on Medical 
Examination show the applicant was in good health and without significant medical




issues. The applicant appears to have been seen several times for low back pain 
shortly after entering the Army, and he was subsequently referred to an Entrance 
Physical Standards Board as required by paragraph 5-11a of AR 635-200.

3.	Entry physical standards board are convened IAW paragraph 7-12 of AR 40-400, 
Patient Administration. This process is for enlisted Soldiers who within their first 6 
months of active service are found to have a preexisting condition which does not meet 
the enlistment standard in chapter 2 of AR 40-501, Standards of Medical Fitness (29 
August 2003), but does meet the chapter 3 retention standard of the same regulation. 
The fourth criterion for this process is that the preexisting condition was not permanently 
aggravated by their military service.

4.	The applicant’s Entrance Physical Standards Board convened on 8 December 1995. 
The history of his low back pain recorded that approximately eight to twelve weeks 
before his induction, while working as a construction worker, pouring concrete and 
moving block and splitting wood, sustained an injury to his low back. He states that he 
did tell his Recruiting Officer about the problem, and was advised by the Recruiting 
Officer not to mention too much about it since it was probably a "strain" and nothing 
more. Since entering in the Army, the physical training and other soldierly exercises 
have proven to be more than he can handle, and his back has given to hurting him in 
ever increasing amounts.

5.	His physical examination at the time revealed there was mild swelling and marked 
spasm of the paravertebral muscles on both sides of the lower lumbar spine. 
Neurologically, the Service Member is intact. He does have a limitation of range of 
motion secondary to pain. He can flex no more than 35 degrees. He can extend to 
neutral and no more. Lateral flexion is 5 degrees on either side. X-rays demonstrate 
some loss of the lumbar lordotic curve, which would indicate moderate to severe spasm. 
The applicant concurred with the Board’s findings on 5 January 1996, initialing the box 
stating “I concur with these proceedings and request to be discharged from the US 
Army without delay.”

6.	It is unknown if conservative treatment including physical therapy, medication, etc. 
would have allowed the applicant to meet the medical retention standards of chapter 3. 
However, the applicant entered the Army with a condition which was preventing him 
from training, and there is no evidence the applicant sustained permanent service 
aggravation. It is the opinion of the Agency Medical Advisor that neither an upgrade of 
his discharge nor referral of his case to the DES is warranted.




BOARD DISCUSSION:

After review of the application and all evidence, including the applicant’s statement, the 
Board determined there is insufficient evidence to grant relief. The Board carefully 
considered the applicant’s request for a medical retirement and reviewed the associated 
evidence and Medical Advisory Opinion. The Board agreed with the Medical Advisory 
Opinion and found that the preponderance of evidence indicates that the applicant’s 
medical conditions existed prior to service. The governing regulation provides that a 
separation will be described as an entry-level separation, with service uncharacterized, 
if the separation action is initiated while a Soldier is in entry-level status. As such, his 
DD Form 214 properly shows his service as uncharacterized. Therefore the Board 
found no basis to correct the record to reflect medical retirement or medical disability 
discharge or to refer him to the DES for evaluation of eligibility for medical retirement or 
medical disability discharge.

2. 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
: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.





X 


11/12/2020


 

CHAIRPERSON

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, 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.	Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), in effect 
at the time, set forth the basic authority for the separation of enlisted personnel.




   a.	An honorable discharge is a separation with honor. The honorable 
characterization is appropriate when the quality of the Soldier’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.	Uncharacterized Separations –– Soldiers separated in an entry-level status 
receive an uncharacterized character of service. A separation is an entry level status 
separation if its processing is initiated during the Soldier's first 180 days of continuous 
active duty. The Secretary 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.

   c.	Paragraph 5-11 specifically provided that Soldiers who were not medically 
qualified under procurement medical fitness standards when accepted for enlistment 
were to be separated. EPSBD proceedings regardless of the date completed had to 
establish the following: that medical authority identified the disqualifying medical 
condition(s) within 6 months of the Soldier's initial entrance on active duty; that the 
condition(s) would have permanently disqualified the Soldier from entry into military 
service, had it been detected earlier; and that the medical condition did not disqualify 
him/her for retention in military service. A Soldier disqualified under this provision could 
request retention on active duty; the separation authority made the final determination.

3.	AR 40-501 (Standards of Medical Fitness) provides information on medical fitness 
standards for induction, enlistment, appointment, retention, and related policies and 
procedures. Chapter 3 (Medical Fitness Standards for Retention and Separation, 
Including Retirement), provides a listing of all medical conditions and specific causes for 
referral to an MEB. It states:

   a.	The various medical conditions and physical defects which may render a Soldier 
unfit for further military service and which fall below the standards required for all 
enlisted Soldiers of the Active Army, Army Reserve National Guard, and U.S. Army 
Reserve. The medical conditions and physical defects, individually or in combination, 
are those, that:

(1)	Significantly limit or interfere with the Soldier's performance of their duties.

      (2)	May compromise or aggravate the Soldier's health or well-being if they were 
to remain in the military Service. This may involve dependence on certain medications, 
appliances, severe dietary restrictions, or frequent special treatments, or a requirement 
for frequent clinical monitoring.

(3)	May compromise the health or well-being of other Soldiers.





      (4)	May prejudice the best interests of the Government if the individual were to 
remain in the military Service.

   b.	Soldiers with conditions listed in Chapter 3, who do not meet the required 
medical standards will be evaluated by an MEB. Possession of one or more of the 
conditions listed in this chapter does not mean automatic retirement or separation from 
service. Physicians are responsible for referring Soldiers with conditions listed in 
Chapter 3 to an MEB.

4.	Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or 
Separation) establishes the PDES according to the provisions of Title 10, U.S. Code, 
chapter 61, Retirement or Separation for Physical Disability, and Department of 
Defense Directive 1332.18. It states:

   a.	The mere presence of an impairment does not, itself, justify a finding of unfitness 
because of physical disability. In each case it is necessary to compare the nature and 
degree of physical disability present the requirements of the duties the Soldier 
reasonably may be expected to perform because of tier office, grade, rank or rating. To 
ensure all solders are physically qualified to perform their duties in a reasonable 
manner, medical retention qualification standards have been established in Army 
Regulation 40-501. These guidelines are used to refer Soldier to an MEB.

   b.	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 they can no longer continue to reasonably perform because of a physical disability 
incurred or aggravated in service.

   c.	When a soldier is being processed for separation or retirement for reasons other 
than physical disability, continued performance of assigned duty commensurate with his 
or her rank or grade until the Soldier is scheduled for separation or retirement, creates a 
presumption that the Soldier is fit. An enlisted soldier who reenlistment has not been 
approved before the end of his or her current enlistment, is not processing for 
separation; therefore this rule does not apply. The presumption of fitness may be 
overcome if the evidence establishes that:

      (1)	The Soldier was, in fact, physically unable to perform adequately the duties of 
his or her office, grade, rank or rating for a period of time because of disability. There 
must be a causative relationship between the less than adequate duty performance and 
the unfitting medical condition or conditions.

      (2)	An acute, grave illness or injury or other significant deterioration of the 
Soldier's physical conditions occurred immediately prior to, or coincident with
      



processing for separation or retirement for reasons other than physical disability and 
which rendered the Soldier unfit for further duty.

   d.	The fact that a Soldier has a condition listed in the Department of Veterans Affairs 
schedule for Rating Disabilities (VASRD) does not equate to finding of physical 
unfitness. An unfitting, or ratable condition, is one which renders the Solder unable to 
perform the duties of their office, grade, rank, or rating, in such a way as to reasonably 
fulfill the purpose of their employment on active duty.

   e.	provides that the medical treatment facility commander with the primary care 
responsibility will evaluate those referred to him/her and will, if it appears as though the 
member is not medically qualified to perform duty or fails to meet retention criteria, refer 
the member to a MEB. Those members who do not meet medical retention standards 
will be referred to a physical evaluation board (PEB) for a determination of whether they 
are able to perform the duties of their grade and MOS with the medically-disqualifying 
condition. The PEB evaluates all cases of physical disability equitably for the Soldier 
and the Army. The PEB investigates the nature, cause, degree of severity, and 
probable permanency of the disability of Soldiers whose cases are referred to the 
board. Finally, it makes findings and recommendations required by law to establish the 
eligibility of a Soldier to be separated or retired because of physical disability.

5.	Title 10, U.S. Code, chapter 61, provides for the retirement and discharge of 
members of the Armed Forces who incur a physical disability in the line of duty while 
serving on active or inactive duty. However, the disability must have been the 
proximate result of performing military duty. It further provides for disability retirement 
or separation for a member who is physically unfit to perform the duties of his office, 
rank, grade, or rating because of disability incurred while entitled to basic pay.

6.	38 USC 1110 (General - Basic Entitlement):

For disability resulting from personal injury suffered or disease contracted in line of duty, 
or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in 
the active military, naval, or air service, during a period of war, the United States will pay 
to any veteran thus disabled and who was discharged or released under conditions 
other than dishonorable from the period of service in which said injury or disease was 
incurred, or preexisting injury or disease was aggravated, compensation as provided in 
this subchapter, but no compensation shall be paid if the disability is a result of the 
veteran's own willful misconduct or abuse of alcohol or drugs.

7.	38 USC 1131 (Peacetime Disability Compensation - Basic Entitlement):

For disability resulting from personal injury suffered or disease contracted in line of duty, 
or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in




the active military, naval, or air service, during other than a period of war, the United 
States will pay to any veteran thus disabled and who was discharged or released under 
conditions other than dishonorable from the period of service in which said injury or 
disease was incurred, or preexisting injury or disease was aggravated, compensation as 
provided in this subchapter, but no compensation shall be paid if the disability is a result 
of the veteran's own willful misconduct or abuse of alcohol or drugs.

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