IN THE CASE OF: BOARD DATE: 17 September 2019 DOCKET NUMBER: AR20190009565 APPLICANT REQUESTS: The applicant requests to change his character of service from uncharacterized to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Self-written statement * Entrance Physical Standards Board (EPSBD) Proceedings * Medical documents 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: a. In Boston at the Military Entrance Processing Station (MEPS) facility he did declare that he had a food allergy. This was reviewed and not "acted upon" and he was still sent to Fort Leonard Wood, MO for basic training. His recruiter was also knowledgeable of his allergies and asthma. See attached documents instructing him to check this box and sign it so he could be sent home immediately. He was wrongly coerced into selecting an option that was completely inaccurate to his situation. He requests expeditious processing of his application so he can use Department of Veterans Affairs (VA) health care. b. He has included his medical records and it clearly shows that this missed at MEPS in Boston. He didn't want to be discharged and wanted to fulfill his enlistment as he clearly was ready to perform all duties as required. When his drill sergeant instructed him to dump the contents of his duffle bag, an epinephrine needle was exposed. It was then when the discharge began. He is submitting his VA disability claim for adverse reaction to certain foods, and believes his allergies were aggravated by his brief military obligation. Please take into consideration, the recruiter had the opportunity to disqualify him but instead allowed him to pursue his military career. He feels the VA should be responsible to provide him with the benefits and medical coverage necessary to help sustain his allergies. 3. On 2 January 1990, a medical examination for the purpose of enlisting in the Army shows the applicant indicated he was allergic to nuts; however, he qualified for service in the Regular Army. He also provided medical documents showing he had been treated in the past for food allergies and allergic reactions. 4. On 27 February 1990, he enlisted in the Regular Army for a period of 4 years. 5. The applicant’s record contains Entrance Physical Standards Board (EPSBD) Proceedings, dated 6 March 1990, which shows: a. The applicant’s chief complaint was listed as him needing a new ANA-Kit. His history of present illness shows he had a several year history of severe generalized life threatening reactions after eating nuts and other foods cooked in nut oils. He had about four reactions requiring self-injected Adrenalin and had been hospitalized on two occasions. This information was reported to the MEPS facility according to the Soldier but not acted upon. He had not had any problems eating at Basic Training as of yet. b. The applicant was diagnosed with a history of severe generalized reactions to various foods that existed prior to service (EPTS). The EPSBD recommended under the provisions of Army Regulation (AR) 40-501 (Standards of Medical Fitness), paragraph 2-39m, the applicant should be should be discharged for a history of severe life threatening reactions to various foods which have required self-inject epinephrine and hospitalization in the past. c. The medical approving authority approved the findings shown on the EPSBD Proceedings. The medical approving authority forwarded the EPSBD Proceedings to the applicant's unit for appropriate action in accordance with paragraph 5-11 of AR 635- 200 (Personnel Separations – Enlisted Personnel). d. The applicant acknowledged that he was informed of the medical findings. Additionally, he acknowledged that he understood that legal advice of an attorney employed by the Army was available to him and that he could consult with civilian counsel at her own expense. The applicant further acknowledged he understood he could request a discharge from the Army without delay or request retention on active duty. The applicant concurred with the proceedings and requested to be discharged from the Army without delay. He did request to be retained on active duty, nor did he disagree with the EPSBD Proceedings. e. The discharge authority approved the applicant's separation from the Army under the provisions of AR 635-200, paragraph 5-11, by reason of failure to meet procurement medical fitness standards. 6. On 21 March 1990, the applicant was discharged. His DD Form 214 shows he was discharged under the provisions of AR 635-200, paragraph 5-11. The narrative reason for separation shows "DID NOT MEET PROCUREMENT MEDICAL FITNESS STANDARDS – NO DISABILITY" and his service was uncharacterized. He completed 25 days of net active service during this period. 7. The applicant contends he was wrongly fully coerced into selecting an option that was completely inaccurate to his situation; nevertheless, the record contains no evidence, nor did he provide evidence supporting this claim. AR 15-185 (Army Board for Correction of Military Records (ABCMR)) states 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. 8. AR 635-200 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. b. 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 6 months of the Soldier's initial entrance on active duty, 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 if the Soldier has not completed more than 180 days of creditable continuous active duty service prior to the initiation of separation action. c. 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 entry-level status, except when characterization under other than honorable conditions is authorized by 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. 9. 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 that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service. 10. AR 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation. Chapter 2 provides the physical standards for enlistment/induction and states allergic manifestations are causes for rejection for appointment, enlistment, and induction in the Army. 11. In regards to the applicant requesting an upgrade so that he may receive benefits. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, 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. 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 length of his service, the outcome of the Entrance Physical Standards Board (EPSBD), his acknowledgement of that outcome and his request to be discharged without delay. The Board found that the evidence supported that the applicant did not meet procurement medical fitness standards and that he was in an initial entry status. Based on a preponderance of evidence, the Board determined that the character of service he 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 :XXX :XXX :XXX 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 635-200 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. b. 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 6 months of the Soldier's initial entrance on active duty, 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 if the Soldier has not completed more than 180 days of creditable continuous active duty service prior to the initiation of separation action. c. 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 entry-level status, except when characterization under other than honorable conditions is authorized by 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. d. 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. 3. AR 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. It states that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service. 4. AR 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation. Chapter 2 provides the physical standards for enlistment/induction and states allergic manifestations are causes for rejection for appointment, enlistment, and induction in the Army. 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 Army Board for Correction of Military Records (ABCMR). 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. 6. 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 on the basis of 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) AR20190009565 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190009565 7 ABCMR Record of Proceedings (cont) AR20190009565 6