IN THE CASE OF: BOARD DATE: 8 March 2022 DOCKET NUMBER: AR20210010023 APPLICANT REQUESTS: Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the narrative reason for his discharge was due to medical disability rather than unsatisfactory performance. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 10 May 2021 * DD Form 214 for the period ending 3 June 1994 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code (USC), 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 wants a medical discharge under honorable conditions because he has numerous disabilities that need addressing and should have been addressed before he left the service. He failed an Army Physical Fitness Test (APFT) because he is diabetic and had a low blood sugar level on the morning of the test. He did not know that he is a Type 1 diabetic at the time of the APFT. He would have requested this correction sooner, but he has been incarcerated for the past 20 years and could not file an application. He cannot provide medical documentation since his main treatment has been while he was incarcerated. The private care he has received can be provided, but he must obtain it from his doctor. 3. The applicant's service records show: a. Following a period of honorable service in the Pennsylvania Army National Guard, the applicant enlisted in the Regular Army on 10 January 1994. His military occupational specialty was 12B (Combat Engineer) and he was assigned to a unit located at Fort Hood, Texas. b. A DA Form 4187 (Personnel Action), dated 8 March 1994, shows the applicant was reduced from the rank/grade of Specialist Four/E-4 to Private First Class/E-3, effective 1 March 1994. c. The applicant was formally counseled on 15 April 1994 for failing his second record APFT on 15 April 1994. He was advised that because of this failure, he would be recommended for elimination from the military under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13 (Separation for Unsatisfactory Performance). It was noted the applicant had already undergone Part 1 of a preseparation medical examination and that he would be scheduled for Part 2 as soon as possible. d. On 11 May 1994, the applicant's immediate commander notified the applicant of his intent to initiate actions to separate him under the provisions of AR 635-200, Chapter 13, by reason of unsatisfactory performance on the APFT. e. The applicant consulted with counsel and was advised of the basis for the contemplated actions to separate him and of the rights available to him. He elected not to submit a statement in his own behalf. f. The applicant's commander formally recommended the applicant's separation from service, under the provisions of AR 635-200, Chapter 13 on 12 May 1994. g. The applicant’s administrative separation packet was reviewed and found to be legally sufficient and in compliance with AR 635-200, Chapter 13. The separation authority approved the recommended discharge and directed the issuance of an under honorable conditions (general) discharge certificate. h. The applicant was discharged on 3 June 1994. His DD Form 214 shows he completed 4 months and 24 days of net active service and contains the following entries in: * Item 24 (Character of Service) – Under Honorable Conditions (General) * item 25 (Separation Authority) – AR 635-200, Chapter 13 * item 26 (Separation Code) – JHJ * item 27 (Reentry Code) – RE-3 * item 28 (Narrative Reason for Separation) – Unsatisfactory Performance 4. The applicant’s record is void of evidence and he has not provided any evidence showing he was diagnosed with any unfitting medical condition during his period of service. On 16 November 2021, an email was sent to the applicant asking him to provide documentation in support of his contention that he suffers from numerous medical conditions. To date, the applicant has provided no response to this request. 5. The applicant asks the Board to upgrade his character of service to honorable. a. During the applicant's era of service, and per the provisions of chapter 13, AR 635-200, commanders could initiate separation action against Soldiers when, in the commanders' judgment: * they would not develop sufficiently to participate in satisfactorily in training and/or become satisfactory Soldiers; * the seriousness of the circumstances was such that the Soldier's retention would have an adverse impact on the military discipline, good order, and morale; and * it was likely the Soldier would continue to be disruptive influences in present and future assignments * it was likely that the circumstances forming the basis for initiation of separation procedures would continue or recur * the ability of the Soldier to perform duties effectively in the future, including potential for advancement or leadership was unlikely b. The regulation permitted separation authorities to furnish Soldiers separated under this provision with either an honorable or a general discharge under honorable conditions. 6. In reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. 7. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting a discharge upgrade and, in essence, a referral to the Disability Evaluation System (DES). He states: “I want a medical discharge under honorable conditions because I have numerous disabilities that need addressing and should have been to before I left the service. I failed a PT test for having a diabetic and having low blood sugar levels on the morning of the test. I am a Type I Diabetic and didn’t know it at the time of my PT test.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 for the period of service under consideration shows he entered the regular Army on 10 January 1994 and received an under honorable conditions (general) discharge on 3 June 1994 under the authority provided in Chapter 13 of AR 635-200, Personnel Separations – Enlisted Personnel (26 May 1989): Separation for Unsatisfactory Performance. c. No medical documentation was submitted with the application. Given the period of service under consideration, there are no encounters in AHLTA. d. The applicant was counseled on 15 April 1994 for having failed a second for record Army physical fitness test (APFT). e. On 11 May 1994, his company commander notified the applicant of the initiation of separation action under provisions in chapter 13 of AR 635-200: “The reasons for my proposed actions are: Your unsatisfactory performance on the Army Physical Fitness Test.” f. The applicant’s discharge under paragraph 13-2 or AR 635-200 was approved by the battalion commander and he was subsequently discharged. g. There is no evidence the applicant had a medical condition which would have failed the medical retention standards of chapter 3, AR 40-501, Standards of Medical Fitness, prior to his discharge; or which was a substantial contributor to his poor performance on 2 consecutive APFTs. Therefore, there would have been no cause for referral to the Disability Evaluation System. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating. h. The applicant states and review of his medical records in JLV shows that the VA has awarded him one or more service connected disability ratings. However, the DES compensates an individual only for service incurred medical condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. i. It is the opinion of the ARBA Medical Advisor that neither a discharge upgrade nor a referral his case to the Disability Evaluation System is warranted. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Board members noted that he was separated due to unsatisfactory performance caused by his APFT failures. There is no evidence that his failures were caused by a medical condition. Had he not failed his APFTs, there would not have been a reason to separate him. Board members agreed with the medical reviewer that there is no evidence the applicant had a medical condition which would have failed the medical retention standards prior to his discharge; or which was a substantial contributor to his poor performance on 2 consecutive APFTs. Therefore, there would have been no cause for referral to the Disability System. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating. For that reason, Board members voted to deny relief. 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. 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. Army Regulation 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 separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. Separation authorities could furnish an honorable discharge when the Soldier's subsequent honest and faithful service over a greater period outweighed the disqualifying entries found in his/her record. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Under chapter 13: (1) Commanders could initiate separation action against Soldiers when, in the commanders' judgment: * they would not develop sufficiently to participate in satisfactorily in training and/or become satisfactory Soldiers; * the seriousness of the circumstances was such that the Soldier's retention would have an adverse impact on the military discipline, good order, and morale; and * it was likely the Soldier would continue to be disruptive influences in present and future assignments * it was likely that the circumstances forming the basis for initiation of separation procedures would continue or recur * the ability of the Soldier to perform duties effectively in the future, including potential for advancement or leadership was unlikely (2) Prior to the initiation of separation action, the regulation stipulated that commanders ensure Soldiers had received adequate counseling and rehabilitation. The regulation pointed out that military service was a calling different from any civilian occupation, and as such, commanders were not to consider separation solely due to unsatisfactory performance unless the leadership had made efforts to rehabilitate the Soldiers. (3) The regulation permitted separation authorities to furnish Soldiers separated under this provision with either an honorable or a general discharge under honorable conditions. 3. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210010023 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1