IN THE CASE OF: BOARD DATE: 17 September 2019 DOCKET NUMBER: AR20190009168 APPLICANT REQUESTS: The applicant request in effect his discharge be changed from uncharacterized to general. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Copy of Medical 200 Board 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 was medically discharge under uncharacterized discharge instead of a general discharge under medical conditions. 3. On 16 November 1998, he enlisted in the Regular Army for three years at the age of 19. His report of medical examination shows he was qualified for enlistment. 4. On 3 March 1999, the applicant underwent an entrance physical standards board EPSBD Proceedings which shows: * Chief Complaint: lower back pain * History of present illness: This is a 19-year old white male AlT, Trainee, MOS, 19D who is complaining of lower back pain since November of 1998. The pain has been centered around the lower right flank area. Urology did an IVP study which was negative due to hematuria in his urine * Past Medical History: The patient relates to having recurrent right flank pain prior to entering service. The patient provided me with documentation of this which was dated back to October of 1997, with right flank pain * Diagnosis: Right lower paravertebral back pain * Recommendations: The patient has been tried with rest, anti-inflammatories and physical therapy since November of 1998, without any resolution of his pain. This is unfitting in accordance with AR 40-501, Chapter 2-36b. 5. On 17 March 1999, the applicant annotated and signed the EPSBD Proceedings indicating that he concurred with the proceedings and requested to be discharged without delay. 6. On 23 March 1999, the applicant’s commander recommended him for separation and on 31 March 1999, the appropriate authority approved the discharge under the provisions of AR 635-200, 5-11 for failure to meet procurement medical fitness standards, returning him to the control of the Tennessee (TN) State National Guard (NG). He also stated the applicant had not completed requirements to be awarded an MOS. 7. On 5 April 1999, he was discharged accordingly. His DD Form 214 shows his characterization of service as uncharacterized. He completed 4 months and 20 days of net active service. 8. The applicant states he was released for medical/fitness reasons against his will. He is applying for a VA mortgage to purchase his first home. His record shows he underwent an EPSBD and was separated for failure to meet procurement medical fitness standards. His condition was identified within the first 6 months of active service and existed prior to the term of service which makes his service appropriately uncharacterized. The characterization of service he received was in compliance with the governing regulation a. AR 635-40 states 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. 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. b. AR 635-200 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. 9. 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. 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. 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, the entrance physical standards board (EPSBD) Proceedings that found his condition existed prior to service and was unfitting, the applicant’s concurrence with the proceedings and request to be discharged, the reason for his separation and the applicant’s status at the time of separation. The Board found the applicant was in an Initial Entry Status when separated, was discharged prior to being awarded an MOS and was returned to his ARNG unit. 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 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: a. 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. b. 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. 4. AR 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for separation of enlisted personnel. a. 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. (1) 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. (2) 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. b. 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. c. 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. 5. 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) AR20190009168 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190009168 6 ABCMR Record of Proceedings (cont) AR20190009168 4