1. IN THE CASE OF: BOARD DATE: 24 September 2020 DOCKET NUMBER: AR20190012795 APPLICANT REQUESTS: The applicant requests, in effect, upgrade of her uncharacterized character of service 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) * Separation Orders FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). However, the Army Board for Correction of Military Records (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 was separated as a result of a back injury that she aggravated during training; she maintains if she had not hurt her back, she would have fulfilled her service obligation. 3. The applicant's available service records show: a. On 15 December 1999, as part of her enlistment into the Regular Army, the applicant underwent an enlistment physical; the examining physician indicated the applicant's spine/other musculoskeletal were normal and affirmed the applicant was qualified to enlist. b. On 14 January 2000, the applicant enlisted into the Regular Army for 3 years; she was 20 years old. After completing basic combat training at Fort Leonard Wood, MO, orders reassigned the applicant to Fort Lee, VA for advanced individual training; she arrived at Fort Lee on 29 March 2000. c. The applicant's service records do not include her separation packet, but her DD Form 214 shows that, on 5 May 2000, the applicant was separated with an uncharacterized character of service. At her separation, she had completed 3 months and 22 days of her 3-year enlistment contract; she was not awarded or authorized any awards. The separation authority cited on the DD Form 214 was Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 5 (Separation for Non-Service Aggravated, EPTS (existed prior to service) Conditions upon Soldier's Waiver of PEB (physical evaluation board) Evaluation). 4. Chapter 5, AR 635-40 provided for the separation of Soldiers who had non-service aggravated EPTS conditions, when those Soldiers had waived a PEB evaluation. Unlike the involuntary separations processed under the provisions of paragraph 5-11 (Separation of Personnel who did not Meet Procurement Medical Fitness Standards), AR 635-200 (Personnel Separations – Enlisted Personnel), chapter 5, AR 635-40 discharges were voluntary. a. The criteria for chapter 5, AR 635-40 separations included the following: the affected Soldier: * had been on active duty for more than 30 days * was eligible for referral into the disability evaluation system (DES) * did not meet medical retention standards, as determined by a medical evaluation board (MEB) * had a disqualifying condition that had existed prior to entry on active duty, and the condition was not aggravated as a result of service * did not require further hospitalization * had been advised of the right to a full and fair hearing, and the Soldier still desired to waive the PEB * had been advised that a PEB evaluation was required to receive Army disability benefits, but a waiver of the PEB evaluation would not prevent the Soldier from applying for Department of Veterans Affairs (VA) benefits b. The regulation defined "aggravated by service" as meaning a preponderance of evidence had shown, as a result of the Soldier's active duty service, a permanent increase in that Soldier's disabling condition had occurred, which extended beyond the condition's natural progression. The Soldier's length of service was also a consideration when determining whether a condition had been "service-aggravated." c. Effective 1 October 1982, a revision of AR 635-200 required Soldiers in an entry- level status (i.e., the first 180 days months of continuous active duty service) to receive an uncharacterized character of service. On a case-by-case basis, Headquarters, Department of the Army, could direct the issuance of an honorable character of service when clearly warranted by unusual circumstances involving personal conduct and/or duty performance. 5. In reaching its determination, the Board can consider the applicant's petition, her service record, and her statements in light of the published guidance on equity, injustice, or clemency. 6. Based on the applicant's claim of having aggravated a back injury during training, the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board members. See the "MEDICAL REVIEW" section." MEDICAL REVIEW: 1. The ARBA Medical Advisor reviewed the supporting documents and the applicant's records in the VA's Joint Legacy Viewer (JLV). The following findings and recommendations are made: 2. The applicant is requesting the character of her discharge be changed from uncharacterized to honorable. The applicant enlisted 14 January 2000. Her enlistment physical examination was completed on 15 December 1999. At the time of her entrance exam there was no mention of any back issues, and she was determined to be qualified for enlistment. The applicant did not submit any medical records to support her assertion of a back injury during BCT. However, the applicant indicated on her ABCMR application that she “aggravated” a back injury while in training that prohibited her from completing the training. This could indicate that the applicant had a prior back injury before entering active duty. The applicant completed 3 months and 22 days of active duty. 3. Since the applicant had completed less than 6 months of active duty, her medical condition was presumed to have existed prior to service, and she was assessed based on AR40-501, Chapter 2 (procurement standards) rather than Chapter 3 (retention standards). Therefore, based on the available information, the ARBA Medical Advisor finds insufficient evidence exists to warrant a change in the character of the applicant’s discharge. BOARD DISCUSSION: The Board concurred with the conclusion of the ARBA Medical Advisor that there is insufficient evidence to support a recommendation for relief in this case. The applicant was an entry-level Soldier who was discharged upon discovery of an EPTS condition. Because she was still in an entry-level status, her service was uncharacterized as prescribed by the governing regulation. The Board determined the applicant's uncharacterized service is not an error, unjust, or inequitable. 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. REFERENCES: 1. Title 10, USC, 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 ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and duty performance. b. Paragraph 3-7b (General Discharge) stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-9 (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. Headquarters, Department of the Army could, on a case-by- case basis, direct the issuance of an honorable character of service to entry-level Soldiers when it was clearly warranted by unusual circumstances involving personal conduct or duty performance. d. 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 were required to be convened within the Soldier's first 6 months of active duty service, and 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 635-40, in effect at the time, prescribed policies and procedures for the evaluation and separation of Soldiers due to physical disability. Chapter 5 provided for the separation of Soldiers who had non-service aggravated EPTS conditions, when those Soldiers had waived a PEB evaluation. a. Unlike separations under paragraph 5-11 (Separation of Personnel who did not Meet Procurement Medical Fitness Standards), AR 635-200 (Personnel Separations – Enlisted Personnel), this type of discharge was voluntary. The criteria for chapter 5, AR 635-40 separations included the following; the affected Soldier: * had been on active duty for more than 30 days * was eligible for referral into the disability evaluation system (DES) * did not meet medical retention standards, as determined by a medical evaluation board (MEB) * had a disqualifying condition that had existed prior to entry on active duty, and the condition was not aggravated as a result of service * did not require further hospitalization * had been advised of the right to a full and fair hearing, and the Soldier still desired to waive the PEB * had been advised that a PEB evaluation was required to receive Army disability benefits, but a waiver of the PEB evaluation would not prevent the Soldier from applying for Department of Veterans Affairs (VA) benefits b. The regulation defined "aggravated by service" as meaning a preponderance of evidence had shown, as a result of the Soldier's active duty service, a permanent increase in that Soldier's disabling condition had occurred, which extended beyond the condition's natural progression. The Soldier's length of service was also a consideration when determining whether a condition had been "service-aggravated." 4. 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. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190012795 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190012795 6 ABCMR Record of Proceedings (cont) AR20190012795 5