IN THE CASE OF: BOARD DATE: 8 March 2022 DOCKET NUMBER: AR20210010391 APPLICANT REQUESTS: * a change in the narrative reason for her separation to reflect medical disability * an upgrade of her uncharacterized discharge to honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Two DD Forms 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) Letter dated 15 April 2020 * VA Service Verification Letter dated 28 April 2020 * VA Home Loan Benefits Letter with Certification dated 29 April 2020 * VA Benefits Certificate dated 11 May 2020 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 her DD Form 214 indicated she was discharged for a hardship and uncharacterized. She believes she should have been discharged for medical reasons with an honorable characterization of service. She did not know that what was listed on her DD Form 214 mattered because she still received 100% disability compensation. It was not until she applied for a VA home loan that she realized she did not have a certificate of eligibility in the system due to her length of service. Additionally, her DD Form 214 does not state that she was discharged due to medical reasons nor does it list an honorably characterization of service. She is requesting the change on her DD Form 214 because it is required for her to receive a VA home loan. So she has attached the letter that was sent from the regional loan office stating that she may be eligible for an exemption for length of service, and needs someone to verify that she could have been or was discharged due to a service-connected disability. She has been working on getting it changed for over a year because no one responded to egional loan office to provide her with an exemption for length of service and she needs verification that she was discharged due to a service connected disability. She was hurt while enlisted during training and was treated for the condition; she is rated at 100% because of the injury she was treated for. She was released under a hardship, but should have received a medical discharge. 3. The applicant provides: a. Her DD Form 214 for her active service from 8 January 2007 through 1 February 2007. b. A VA letter, dated 15 April 2020, identified the applicant as totally and permanently disabled with a combined service connected evaluation rating of 80% effective 3 May 2017. c. A VA service verification letter, dated 28 April 2020, certified the applicant was discharged from the U.S. Armed Forces with an “under honorable conditions” discharge for the service period of 8 January 2007 through 1 February 2007. d. A VA home loan benefits letter, dated 29 April 2020, notified the regional office that the applicant may be eligible for an exception for length of service required if she was discharged or could have been discharged due to a service connected disability. The office was asked to complete an administrative decision regarding the discharge and the provided certification. e. A VA benefits certificate, dated 11 May 2020, which certified the applicant was honorably discharged and received benefits at the 100% rate due to service-connected disabilities. 4. A review of the applicant’s service record shows: a. She enlisted in the Regular Army on 8 January 2007. b. The applicant underwent a medical evaluation for the purpose of enlistment which indicated she had no significant medical issues with the exception of marking “yes” to wearing contacts/glasses and generally in good health. The applicant was deemed qualified for service. * DD Form 2807-1 (Report of Medical History) dated 6 December 2006 * DD Form 2808 (Report of Medical Examination) dated 6 December 2006 c. A handwritten Red Cross message, case number 1945228, indicated the applicant’s step mother requested the applicant be notified that she could no longer care for the applicant’s children, ages 7 and 9, while she was in training. The applicant was asked to make arrangements for someone else to care for the children immediately. d. A Soldier’s Questionnaire, dated 27 January 2007, was signed by the applicant indicating she agreed with separation because she no longer had someone to care for her children. She was given an option to select positive or negative aspects and she elected positive noting she learned good Army values, self-esteem, respect, and more discipline; it was a good experience. e. A statement from the applicant, dated 27 January 2007, confirming she was notified of a situation concerning the welfare of her children. She needed to go care for children because they were no longer being cared for. She was the only person that would be able to care for them and needed to be there as soon as possible to prevent Social Service from taking her children. f. On 27 January 2007, the applicant received a DA Form 4856-E (Developmental Counseling Form) which stated the applicant was notified through Red Cross that her mother had been diagnosed with lung cancer and could no longer care for her children. The applicant was being counseled for separation under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), Chapter 6. g. A DA Form 4187 (Personnel Action), dated 27 January 2007, wherein the applicant requested voluntary separation under the provisions of AR 635-200, paragraph 6-3b for hardship. Her Commander recommended approval for the applicant’s request for a voluntary separation. h. A recommendation from the battalion chaplain, dated 29 January 2007, to separate the applicant under Chapter 6 due to hardships that resulted from her stepmother’s medical condition and her inability to care for the applicant’s children. i. A memorandum from the applicant’s commander, dated 30 January 2007, requesting the applicant’s pay be suspended if her request for discharge was approved. j. On 1 February 2007, consistent with the chain of command recommendations, the separation authority approved the applicant's request for voluntary discharge under the provisions of AR 635-200, Chapter 6 for hardship. She would be issued an entry-level characterization of service, uncharacterized. k. Orders 032-1300, dated 1 February 2007, discharged the applicant from active duty with an effective date of 1 February 2007. l. On 1 February 2007, she was discharged from active duty under the provisions of paragraph 6-3 of AR 635-200 with an uncharacterized characterization of service. Her DD Form 214 shows she completed 24 days of active service. She was assigned separation code KDB and the narrative reason for separation listed as “Hardship.” She did not complete training and was not awarded a military occupational specialty. 5. The applicant's service record is void of documentation that shows she was treated for an injury or an illness that warranted her entry into the Physical Disability Evaluation System (PDES). Additionally, there is no indication she underwent a medical evaluation board (MEB) or a physical evaluation board (PEB). 6. There is no evidence the applicant has applied to the Army Discharge Review Board for review of her discharge within that board's 15-year statute of limitations. 7. By regulation (AR 635-200), Soldiers may be discharged because of genuine dependency or hardship. Hardship exists when in circumstances, not involving death or disability of a member of the Soldier’s (or spouse’s) immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship. If the Soldier is still in entry-level status, service will be described as uncharacterized. 8. By regulation (AR 635-5), the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. Block 28 (Narrative Reason for Separation) is based on regulatory or other authority and can checked against the cross reference in AR 635-5-1 (Separation Program Designator (SPD) Codes). 9. By regulation (AR 635-5-1), separation program designator (SPD) codes are three- character alphabetic combinations that identify reasons for, and types of, separation from active duty. The narrative reason for the separation will be entered in block 28 of the DD Form 214 exactly as listed in tables 2-2 and 2-3. Table 2-3 lists for SPD code “KDB” the narrative reason as Hardship,” by regulatory authority AR 635-200, paragraph 6-3a or b. 10. By regulation (AR 40-501), medical evaluation of certain enlisted military occupational specialties and officer duty assignments in terms of medical conditions and physical defects are causes for rejection or medical unfitness for these specialized duties. If the profile is permanent the profiling officer must assess if the Soldier meets retention standards. Those Soldiers on active duty who do not meet retention standards must be referred to a medical evaluation board. Once a determination of physical unfitness is made, disabilities are rated using the VA schedule of disability rating. 11. By regulation (AR 635-40), the mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Paragraph 3-4 states Soldiers who sustain or aggravate physically- unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: a. The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. b. The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 12. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 13. Title 38, United States Code, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 14. Title 38, Code of Federal Regulations, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to Veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his/her duties. Unlike the Army, the VA can evaluate a Veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 15. 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 an upgrade of her uncharacterized discharge and in essence, a referral to the Disability Evaluation System (DES). She states: “On my DD 214 it states that I was discharged for a hardship and uncharacterized. I was supposed to be discharged for medical reasons, and I am supposed to have an honorable discharge listed on the DD214 not a hardship. I did not know that it mattered what was on my DD 214 because I still receive my 100 percent disability compensation. It wasn’t until I recently applied for a VA home loan and did not have a certificate of eligibility in the system because of my length of service and it does not say on my DD 214 that I discharged medically or have an honorable discharge to verify that I am eligible to receive a VA home loan.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows she entered the regular Army on 8 January 2007 and was discharged on 1 February 2007 under provisions provided in paragraph 6-3a of AR 635-200, Active Duty Enlisted Administrative Separations (6 June 2005): Dependency. However, the narrative reason is “Hardship”, which is paragraph 6-3b of AR 635-200. c. Paragraph 6-3a states: “Dependency exists when death or disability of a member of a soldier’s (or spouse’s) immediate family causes that member to rely upon the soldier for principal care or support.” Paragraph 6-3b states: “Hardship exists when in circumstances not involving death or disability of a member of the Soldier’s (or spouse’s) immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship.” d. Her pre-entrance Report on Medical examination shows she was in good health, and without significant medical history or conditions. e. Review of the applicant’s encounters in AHLTA show only three clinical encounters during her time in service: One each for iron deficient anemia, contusion on her right hip and knees from a fall, and an upper respiratory tract infection. f. On or about 27 January 2007, the applicant’s command received a Red Cross message that the applicant’s stepmother had changed her mind on caring for the applicant’s children (ages 7 and 9) while she was in training and requested the applicant immediately make arrangements for someone else to care for her children. On 27 January 2007, her company commander counseled her about this issue: “[Applicant], you have been counseled for separation under Chapter 6, we have received messages from your hometown and the Red Cross, stating that your mother has been diagnosed with lung cancer (emphysema), and that she cannot take care of your 2 children. This situation has affected your family care plan. PFC [Applicant], I am recommending that you be separated from the military service under the provisions of Chapter 6, IAW AR 635-200.” On 27 January 2007, the applicant stated she agreed with her separation because “I no longer have anyone that is able to care for my children while I am away.” The applicant’s discharge under paragraph 6-3b of AR 635-200 was approved by the brigade commander on 1 February 2007. g. There is no evidence the applicant had any medical condition which would have failed the medical retention standards of chapter 3, AR 40-501 prior to his discharge. Thus, there was 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 prior to his discharge. h. Review of her records in JLV confirms that she has been awarded multiple VA service connected disability ratings. However, the DES compensates an individual only for 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. That role and authority is granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. i. An uncharacterized discharge is given to individuals who separate prior to completing 180 days of military service, or when the discharge action was initiated prior to 180 days of service. This type of discharge does not attempt to characterize service as good or bad. j. It is the opinion of the ARBA Medical Advisor that neither a discharge upgrade nor a referral of her case to the Disability Evaluation System is warranted. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. Because the applicant did not complete training and was not awarded an MOS, and because she was separated within 6 months of her entry on active duty, an entry level (uncharacterized) discharge is appropriate. There is no error or injustice. Furthermore, the Board concurred with the medical advisory official's finding no evidence the applicant had any medical condition which would have failed the medical retention standards of chapter 3, AR 40-501 prior to discharge. Thus, there was 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 prior to his discharge. Although she has been awarded multiple VA service connected disability ratings that does not mean there was an error on behalf by the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 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, 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 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. 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. b. Paragraph 3-9 (Uncharacterized Discharge) states a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in entry-level status. c. Chapter 6 of the regulation states Soldiers may be discharged because of genuine dependency or hardship. Hardship exists when in circumstances, not involving death or disability of a member of the Soldier’s (or spouse’s) immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship. If the soldier is still in entry-level status, service will be described as uncharacterized. 3. Army Regulation 635-5 (Separation Documents), in effect at the time, states the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. Block 28 (Narrative Reason for Separation) is based on regulatory or other authority and can checked against the cross reference in AR 635-5-1 (Separation Program Designator (SPD) Codes). 4. Army Regulation 635-5-1 (Separation Program Designator Codes), in effect at the time, provides separation program designator (SPD) codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The narrative reason for the separation will be entered in block 28 of the DD Form 214 exactly as listed in Tables 2-2 and 2-3. Table 2-3 lists for SPD code “KDB” the narrative reason as Hardship,” by regulatory authority AR 635-200, paragraph 6-3a or b. 5. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 6. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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. a. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 7. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 8. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 9. 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. 10. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210010391 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1