IN THE CASE OF: BOARD DATE: 1 November 2021 DOCKET NUMBER: AR20210005812 APPLICANT REQUESTS: upgrade of his uncharacterized discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in lieu of DD Form 149 (Application for Correction of Military Record) * Standard Form (SF) 88 (Report of Medical Examination) * Automated DA Form 5286-R (Individual Training Record) * DA Form 705 (Army Physical Fitness Test Scorecard) * DA Forms 4856 (General Counseling Form) * DA Form 5181-R (Record of Acute Medical Care) * SF 600 (Chronological Record of Medical Care) * DA Forms 4856 (General Counseling Form) * SF 513 (Consultation Sheet) * Memorandum (Existed Prior to Service (EPTS) Medical Board Pending) * DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 he feels as though the uncharacterized discharge was potentially an error on behalf of the separating unit, but regardless of this, the current character of discharge precludes him from utilizing many Department of Veterans Affairs (VA) benefits he should be eligible for, which is unjust on his behalf. The current discharge is reserved for members with less than 180 days of service, and as he was on active duty for more than 10 months, this is inequitable because of his length of service. He is currently in the claims process with VA for disability, as his service treatment record clearly demonstrates that his arches fell out in basic training and advanced individual training, which was the reason for his separation. Other than the bilateral pes planus, he did serve honorably and to the best of his ability, passing standards to qualify for airborne training (prior to the arches falling out). For these reasons, he feels it is only right to upgrade his character of service to honorable. Please review the attached documentation and determine if the upgrade can be granted, given his length of service and honorable service, pes planus aside. 3. The applicant enlisted in the United States Army Reserve on 23 January 1992 for a period of 8 years in the delayed entry program (DEP). He was discharge from the DEP and enlisted in the Regular Army for a period of 4 years on 11 August 1992. 4. On 20 November 1992, the applicant was notified action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, for academic failure, had been initiated. The separation action was approved on 30 November 1992. 5. The applicant received an entry level, uncharacterized discharge on 4 December 1992 under the provisions of Army Regulation 635-200, paragraph 11-3a. He was credited with 3 months and 24 days of net active service. His separation code was JGA, and reentry code was 3. 6. The applicant underwent a medical examination on 13 November 1998 for the purpose of enlisting in the Army. His Standard Form (SF) 88 (Report of Medical Examination) does not show any significant defects. 7. The applicant enlisted in the Regular Army on 29 April 1999 for a period of 3 years. 8. The applicant provided an Individual Training Record that shows his completion and scores for basic rifle marksmanship, hand grenade qualification, basic physical fitness test, push up event, sit up event, and 2 mile run event. He provided an Army Physical Fitness Test Scorecard that shows 5 test scores for his physical fitness tests from 7 May 1999 to 21 July 1999. He provided a DA Form 4856 dated 1 August 1999 that shows his overall phase IV evaluation was satisfactory. 9. The applicant also provided a Record of Acute Medical Care dated 21 August 1999 that shows he was treated for foot pain. He provided a SF 600 dated 25 August 1999 that also shows he was treated for foot pain resulting from pes planus. 10. The applicant provided second DA Form 4856 dated 28 August 1999 that shows his overall phase V evaluation was satisfactory. He provided a second SF 600 dated 16 September 1999 that shows he was treated for pes planus. He provided a SF 513 dated 17 September 1999 that further shows he was treated for pes planus. 11. The applicant provided a memo, subject: EPTS Medical Board Pending, dated 21 September 1999. It shows the applicant was being processed for separation for a medical condition which did not meet medical fitness standards for procurement and he was pending an Entrance Physical Standards Board Proceedings. He was restricted from crawling, stooping, running, jumping marching or standing for long periods, strenuous physical activity, and handling of heavy materials including weapons, overhead work, pull-ups or push-ups. 12. The applicant provided a DA Form 4707, dated 21 September 1999, showing he was diagnosed with symptomatic bilateral pes planus. It was recommended he meet a medical board for consideration for separation. He did not meet medical fitness standards for enlistment or induction under the provisions of paragraph 10.b.5, chapter 2, AR 40-501 (Standards of Medical Fitness). It was determined the condition existed prior to service and had not been service aggravated. The origin of the condition was congenital and he did not meet standards for retention under chapter 3 of AR 40-501. The findings were approved on 22 September 1999. The applicant concurred with the proceedings and requested to be discharged from the Army without delay on 4 October 1999. His discharge action was approved on 7 October 1999. 13. His record contains a DD Form 3648 (Preseparation Counseling Checklist) dated 30 September 1999. In Section V (Remarks), it states the member is a training separatee with an uncharacterized discharge. Member has been provided information and/or points of contact dealing with benefits and services not marked as N/A on this form. 14. The applicant received an uncharacterized discharge on 13 October 1999 under the provisions of Army Regulation 635-200, paragraph 5-11, for failure to meet procurement medical fitness standards. Although the DD Form 214 he was issued shows he was credited with 9 months and 9 days of net active service, his service records confirm the entry date recorded on the DD Form 214 is incorrect. He enlisted on 29 April 1999, but the DD Form 214 incorrectly shows his entry on active duty date as 5 January 1999, which was his basic active service date based on his prior period of active duty service. 15. 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 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. 16. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. Chapter 5, Paragraph 5-11 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 for training for initial entry training may be separated. Such conditions must be discovered during the first 6 months of active duty. 17. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant's records in the VA's Joint Legacy Viewer (JLV). a. The 13 November 1998 Report of Medical Exam (for enlistment) showed no foot abnormalities. The arch assessment was left blank. The physical profile showed PULHES 111111. He was deemed qualified for service as well as being qualified for airborne training. b. In August 1999, the applicant was seen for bilateral pain down the leg of 3 months' duration and was diagnosed with Bilateral Pes Planus. Podiatry was consulted for arch supports. On 16 September 1998, the podiatrist indicated that the custom orthotics had helped with ambulation, but the applicant’s foot pain was aggravated with running, jumping, and marching. He could not perform his military duties. Pertinent exam findings included decreased medial longitudinal arches. Films showed decreased calcaneal pitch angle. He was assessed to be non-deployable for his Flexible Symptomatic Pes Planus. (Flexible pes planus is detectible while standing (weight- bearing.) The recommendation was that this was an EPTS condition. c. The EPSBD Proceedings held 21 September 1999 indicated that although the applicant did not have chronic bilateral foot pain prior to service, but he also was not athletic prior to joining the service. In addition to the foot pain increasing with running, jumping, and marching; it was also worsened by wearing combat boots. It was determined that he does not meet medical fitness standards for enlistment or induction under the provisions of paragraph 10b(5), chapter 2, AR 40-501. The condition was congenital, and it had not been aggravated by service. It was also determined that he did not meet standards for retention under the provisions of Chapter 3, AR 40-501. He was given a permanent level 3 physical profile. The applicant concurred with the Board proceedings. d. JLV showed that the applicant’s first record in the system occurred in 2020 (20 years after discharge from service). On 30 November 2020, he called the podiatry service to restate his concerns over his chronic bilateral foot pain which was worse on the right. A JLV search also showed that he was service connected by the VA for the following disabilities: Mood disorder (70%), Flat Foot (50%), Limited Motion of Forearm (20%), Tinnitus (10%), and Limited Flexion of Forearm (20%). e. The applicant was discharged under provisions of AR 635-200, paragraph 5-11, and his service was uncharacterized. The applicant was in his 10th week of advanced individual training according to the EPSBD Proceedings. The medical impairment was identified within 180 days of the applicant’s entry on active duty, and the condition did not meet accession standards. However, the Board also determined that the condition did not meet retention standards per AR 40-501 chapter 3. (The condition did not meet retention standards because it interfered with wearing military boots (paragraph 3- 13b(2) chapter 3, AR 40-501).) A Medical Board was recommended, but the ARBA reviewer did not see documentation that it had occurred. The recommendation was in accordance with provisions of AR 635-200, paragraph 5-11; as well as DoDi 1332.38 (14 November 1996), E3.P2.5. (Members with a Non-waived Pre-Existing Condition.) Per E3.P2.5.4. (Service aggravation of the impairment has not occurred): “If the Service member contests the ‘not service aggravated’ determination by the physician recommending separation, the member may request the Medical Evaluation Board be forwarded to the Physical Evaluation Board for review.” In this case, the "not service aggravated" designation appears to have been determined by the EPSBD. At the time, the applicant did not protest the EPTS and "not service aggravated" determinations, and elected to be discharged from the Army without delay on 4 October 1999. He now asserts that his arches fell during basic training and advanced individual training. Although his request is for a change in characterization from uncharacterized to honorable, review of the case appears to indicate that discharge processing may have been incomplete. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is not warranted. 2. Notwithstanding the ARBA Medical Advisor's conclusion that the applicant's discharge processing may have been incomplete, the Board found that the evidence clearly establishes that the applicant had an EPTS condition that did not meet the standards for entry on active duty, the condition was discovered within 180 days of his entry on active duty, and he requested to be discharged without delay. The Board further found that an error on the entry on active duty date on the applicant's DD Form 214 has led him to the mistaken belief that he had served for more than 6 months and was no longer an entry-level Soldier. Based on the correct entry on active duty date of 29 April 1999, the applicant had not yet served for more than 6 months when his discharge processing was initiated, and he was still in an entry-level status. The governing regulation requires that entry-level status Soldiers will have uncharacterized service upon discharge. Based on a preponderance of evidence, the Board determined the applicant's uncharacterized service is not in error or unjust. 3. The Board concurred with the corrections described in Administrative Note(s) below. 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: Other than the corrections addressed in Administrative Note(s) below, the Board determined 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 otherwise 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): The applicant’s DD Form 214 for the period ending 13 October 1999 contains errors. Correct the DD Form 214 as follows: * Item 12a – replace the current entry with 29 April 1999 * Item 12c – replace the current entry with "0000 05 15" * Item 12d – replace the current entry with "0000 03 24" 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. a. Entry-level status for Regular Army soldiers is defined as the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break of more than 92 days of active military service. b. Chapter 3, Paragraph 3-9 states a separation will be described as an entry level separation with service uncharacterized if processing is initiated while a soldier is in entry level status c. Chapter 5, Paragraph 5-11 states: (1) 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 AD or ADT for initial entry training will be separated. Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by appropriate military medical authority within 6 months of the soldier’s initial entrance on AD for RA, or during ADT for initial entry training for ARNGUS and USAR which – * would have permanently or temporarily disqualified him or her for entry into the military service or entry on AD or ADT for initial entry training had it been detected at that time * does not disqualify him or her for retention in the military service under the provisions of AR 40-501, Chapter 3 (2) Soldiers who do not meet the medical fitness standards for retention will be processed per AR 635-40. d. Chapter 11, establishes policy and prescribes procedures for separating members because of unsatisfactory performance or conduct (or both) while in an entry- level status. It states, in pertinent part, that separation under this chapter applies to soldiers who are in an entry level status and, before the date of the initiation of separation action, have completed no more than 180 days of continuous active duty and have demonstrated that they cannot or will not adapt socially or emotionally to military life. Entry-level status is defined as the first 180 days of continuous active duty. It further states that the character of service for members separated under the provisions of this chapter will be uncharacterized. 3. Army Regulation 635-5 (Personnel Separations – Separation Documents) prescribes the separation documents which are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for preparing and distributing DD Form 214 (Certificate of Release or Discharge from Active Duty. Chapter 2, section II provides the instructions for preparing the DD Form 214. Paragraph 2-8 states for item 12d, enter total amount of prior active military service less lost time, if any. If there was no prior active service, enter 00 00 00. 4. Title 38 U.S. Code, section 1110 (General - Basic Entitlement) states 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. 5. Title 38 U.S. Code, section 1131 (Peacetime Disability Compensation - Basic Entitlement) states 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. 6. Army Regulation 635-40 establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. 7. Army Regulation 40-501 (Standards of Medical Fitness) provides medical fitness standards of sufficient detail to ensure uniformity in the medical evaluation of – a. Candidates for military service or person in the military service in terms of medical conditions and physical defects which are causes for rejection or medical unfitness for military duty. b. Certain enlisted military occupational specialties and officer duty assignments in terms of medical conditions and physical defects which are causes for rejection or medical unfitness for these specialized duties. c. Paragraph 2-10.b.(5) addresses the lower extremities causes for rejection which includes pes planus, which is defined as pronounced cases with decided eversion of the foot and marked bulging of the inner border, due to rotation of the talus, regardless of the presence or absence of symptoms d. Chapter 3 gives the various medical conditions and physical defects which may render a soldier unfit for further military service and which fall below the standards required. Paragraph 3-13.b.(2) addresses the lower extremities causes for referrals to a medical evaluation board, which included pes planus, when symptomatic, more than moderate, with pronation on weight bearing which prevents the wearing of military footwear, or when associated with vascular changes //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210005812 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1