IN THE CASE OF: BOARD DATE: 26 January 2022 DOCKET NUMBER: AR20210005408 APPLICANT REQUESTS: * a disability separation or retirement vice uncharacterized discharge * a telephonic appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Service Medical Records * DD Form 214 (Certificate of Release or Discharge from Active Duty) * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) * Orders 65-1019 (Discharge from the Army National Guard (ARNG)) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b); 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 from his discharge, he developed mental problems. He feels like a failure. He constantly feels like committing suicide. He is having issues in his day to day activities and relationships. He needs help. His physical injuries are getting worse. 3. The applicant enlisted in the CAARNG on 15 June 2007. 4. He entered active duty for training on 13 November 2007. 5. The applicant provides his service medical records, which show he received an MRI for his spine after complaining of lower back pain. The treatment notes indicate he was unresponsive to treatment and unable to train. 6. On 28 February 2008, he was released from active duty due to not meeting procurement medical standards, and transferred to the CAARNG. He did not meet completed training and was not awarded an MOS (military occupational specialty). 7. His DD Form 214 shows he completed 3 months and 16 days of active service. It also shows in: * item 24 (Character of Service): Uncharacterized * item 25 (Separation Authority): Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-11 (Separation of Personnel Who Did Not Meet Procurement Medical Fitness Standards) * item 28 (Narrative Reason for Separation): Failure to Meet Procurement Medical Fitness Standards 8. On 4 March 2008, the applicant was discharged from the CAARNG. His NGB Form 22 shows he completed 8 months and 20 days of net service this period. It also shows he was discharged for entry level status and conduct with an uncharacterized characterization of service in accordance with National Guard Regulation (NGR) 600- 200 (Enlisted Personnel Management), paragraph 8-26 (Discharge from State ARNG and/or Reserve of the Army). 8. On 5 March 2008, Joint Force Headquarters, CAARNG, published Orders 65-1019, which show the applicant was discharged from the ARNG and as a Reserve of the Army with an effective date of 4 March 2008. The applicant’s service was characterized as uncharacterized. 9. By regulation, Soldiers who were 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 or active duty training for initial entry training, may be separated. Such conditions must be discovered during the first 6 months of active duty. 10. Also by regulation, Soldiers are referred to the disability system when they have a condition that does not meet medical retention standards in accordance with AR 40-501 (Standards of Medical Fitness) and/or prevents the Soldier from performing all required functional activities. A Medical Evaluation Board (MEB) is convened to determine whether a Soldier’s medical condition meets medical retention standards per AR 40-501. A Physical Evaluation Board (PEB) determines fitness for purposes of Soldiers retention, separation, or retirement for disability. 11. By regulation (AR 15-185), applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 12. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. A review of the Armed Forces Health Longitudinal Technology Application (AHLTA), Federal Electronic Health Record (FEHR) & Health Artifacts Image Solutions (HAIMS) indicates the applicant was seen for lower back pain on 9 Jan 2008. Treatment note indicates he fell in the barracks while attempting to get dressed. He slipped and landed on his left buttock. He was seen for physical therapy. X-rays showed slight narrowing of the L5-S1 disk space with no evidence of acute bony injury. MRI results showed soft tissue structures were within normal limits and no evidence of abnormal bone marrow signal intensity. On 31 Jan 2008, the doctor noted exist prior to service (EPTS) sleep apnea and submitted a sleep study consult. On 7 Feb 2008, he completed a sleep study. On 11 Feb 2008, provider documented Sleep Apnea Obstructive and initiated EPTS separation. A review of JLV indicates the applicant is not registered in the VA system. The applicant asserts he developed mental problems from being discharged and feels like committing suicide. No medical records were provided for review. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is no documentation to support a behavioral health diagnosis at the time of his discharge. Based on the applicant’s statement, he developed psychiatric difficulties because he was discharged which means they were subsequent to his discharge. The applicant was discharged due to preexisting medical condition that did not meet accession standards thus medical disability is not warranted. a. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (a) No (2) Did the condition exist or experience occur during military service? (a) N/A (3) Does the condition or experience actually excuse or mitigate the discharge? (a) N/A (4) Does the condition or experience outweigh the discharge? (a) N/A BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, a medical advisory opinion and published guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant statement, his record of service, documents provided by the applicant and the review and conclusions of the advising official. 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. The Board concurred with the medical advisory opinion finding no error or injustice. The applicant did not complete training and was released from active duty due to not meeting procurement medical standards, and transferred to the CAARNG. As such, his DD Form 214 properly shows the appropriate characterization of service as uncharacterized. 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. 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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, United States Code, 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. Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, prescribes the separation of enlisted Soldiers. Paragraph 5-11 (Separation of Personnel Who Did Not Meet Procurement Medical Fitness Standards) states Soldiers who were 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 or active duty training for initial entry training, may be separated. Such conditions must be discovered during the first 6 months of active duty. 3. National Guard Regulation 600-200 (Enlisted Personnel Management), in effect at the time establishes standards, policies, and procedures for the management of Army National Guard (ARNG) enlisted Soldiers. Paragraph 8-26 (Discharge from State Army National Guard (ARNG) and/or Reserve of the Army) states Soldiers may be separated for failure to meet procurement standards in accordance with AR 40-501 (Standards of Medical Fitness), chapter 2 prior to entry onto initial active duty training. 4. Army Regulation (AR) 635-40 (Disability Evaluation for Retention, Retirement, or Separation) prescribes Army policy for the disability evaluation and disposition of Soldiers who may be unfit to perform their military duties due to physical disability. Paragraph 4-7 (Medical Evaluation Board (MEB) Policy) states an MEB is convened to determine whether a Soldier’s medical condition(s) meets medical retention standards per AR 40-501 (Standards of Medical Fitness). Paragraph 4-19 (Physical Evaluation Board (PEB) Policy) states PEBs determined fitness for purposes of Soldiers retention, separation or retirement for disability under 10 USC, Chapter 61, or separation for disability without entitlement to disability benefits under other than 10 USC, Chapter 61. 5. Title 38, USC, Section 1110 (Wartime Disability Compensation – Basic Entitlement) provides 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 U.S. 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. 6. Title 38, USC, Section 1131 (Peacetime Disability Compensation – Basic Entitlement) provides 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 U.S. 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. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. It states further, in paragraph 2-11, that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210005408 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1