IN THE CASE OF: BOARD DATE: 16 March 2022 DOCKET NUMBER: AR20210013662 APPLICANT REQUESTS: * in effect, honorable physical disability discharge * a video/telephonic appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 was not afforded a medical evaluation and was not even given a “chance to be recycled.” He passed all of his physical exams with the exception of the last physical exam. He injured his back at a training event. 3. The applicant does not provide any supporting documentation. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 7 March 2017. b. The applicant underwent a medical evaluation for the purpose of enlistment which indicated he 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 7 February 2017 * DD Form 2807-2 (Accessions Medical Prescreen Report) dated 23 January 2017 * DD Form 2808 (Report of Medical Examination) dated 7 February 2017 c. The applicant’s Enlisted Record Brief did not indicate the applicant had any profile restriction and the service record was void of physical profiles. d. Four DA Forms 4856 were signed and dated by the applicant: * 30 April 2017 – failure to meet minimum basic combat training (BCT) Army Physical Fitness Test (APFT) standards with 50 points in each event; scored 29 points in push ups * 8 May 2017 – failure to achieve BCT APFT standard of 50 points in each event on the end of cycle APFT retest with 38 points in push ups * 13 May 2017 – failure to achieve BCT APFT standard of 50 points in each event on the end of cycle APFT (#3) retest with 29 points in push ups * 16 My 2017 – failure to successfully pass the APFT after multiple opportunities and initiation of separation under Chapter 11 e. The Commander initiated a DA Form 638 (Report to Suspend Favorable Personnel Actions (FLAG)), effective 14 May 2017, for involuntary separation. f. On 19 May 2017, the applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of Chapter 11, Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separation), for entry level status performance and conduct. The reasons for his proposed action were because he was unable to meet the minimum standards to graduate Basic Combat Training due to his inability to pass the APFT, which is a requirement. The applicant acknowledged receipt on 23 May 2017. g. On 23 May 2017, after waiving consultation with legal counsel, he acknowledged: * the rights available to him and the effect of waiving said rights * he is not entitled to have his case heard by an administrative separation board * he may be ineligible to apply for enlistment in the Army for 2 years after discharge * he elected not to submit statements on his behalf h. On 23 May 2017, the immediate commander initiated separation action against the applicant for entry level status performance and conduct. The commander recommended an uncharacterized discharge. i. On 23 May 2017, consistent with the chain of command recommendations, the separation authority approved the discharge recommendation for immediate separation under the provisions of AR 635-200, Chapter 11, for entry level status performance and conduct. j. Orders 144-1305, dated 24 May 2017, discharged the applicant from active duty with an effective date of 30 May 2017. k. On 30 May 2017, he was discharged from active duty with an uncharacterized characterization of service. His DD Form 214 shows he completed 2 months and 24 days of active service. He was assigned separation code JGA and the narrative reason for separation listed as “Entry Level Performance and Conduct.” 5. The applicant's service record is void of documentation that shows he was treated for an injury or an illness that warranted his entry into the Physical Disability Evaluation System (PDES). Additionally, there is no indication he 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 15-185), an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 8. By regulation (AR 635-200), a separation is described as an entry-level separation if processing is initiated while a member is in an entry-level status. This separation policy applies to Soldiers who enlisted in the Regular Army, Army National Guard, or U.S. Army Reserve who are in entry level status and, before the date of initiation of separation action, have completed no more than 180 days of creditable continuous active duty or IADT by the date of separation and have demonstrated they are not qualified for retention. 9. By regulation (AR 635-8), 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). 10. 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 “JGA” the narrative reason as “Entry Level Performance and Conduct” by regulatory authority AR 635-200, chapter 11. 11. 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. 12. 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. 13. 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. 14. 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. 15. 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. 16. 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 his 6 February 2019 uncharacterized discharge. He states: “I wasn’t given a medical evaluation and I wasn’t given a chance to be recycled. I passed all of my physical exams except my last physical exam. That’s when I injured my back at a training event.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows he entered the regular Army on 7 March 2017 and received an uncharacterized discharge 30 May 2017 under provisions provided in chapter 11 of AR 635-200, Personnel Separations – Enlisted Personnel (19 December 2016): Entry Level Performance and Conduct. c. The applicant’s pre-entrance Report of Medical History and Report of Medical Examination show he was in good health, without any significant medical history or medical conditions other than mild asymptomatic pes planus (flat feet). d. On 30 April 2017, the applicant was counseled on his recent APFT failure, having passed the sit-up event but failing both the 2-mile run and push-up events. He was counseled for two subsequent APFT failures on 8 May 2017 and 13 May 2017. For both of these APFTS, he passed the sit-up and 2-mile run events but failed the push-up event. e. Review of his AHLTA records show she was first seen for low back pain (LBP) at the physical therapy clinic on 9 May 2017. His exam was normal except for some mild tenderness to palpation over the lumbar musculature. He was diagnosed with non- specific low back pain for which he was treated conservatively. At a second visit for his condition, on 12 May 2017, he was there for a check-up for his 2-week history of low back pain. The examination was again normal except for the previously noted tenderness to palpation and some previously unnoted discomfort with range of motion testing. f. It is noted at his third and final visit for this condition on 15 May 2017 that he had failed and Army physical fitness test (APFT): “28-year-old male SIT {Soldier in training} with continuing LBP that refers to the left hip. He has a non-antalgic gait but endorses pain with running and most physical training activities. His unit is supposed to graduate this week but he is a PT failure and did not meet the requirements for the FTU {fitness training unit}. He was previously treated for LBP with NSAIDs and a muscle relaxer.” g. The Fitness Training Unit (FTU) is a specialized training element with the mission of improving the fitness level of new recruits. h. He was counseled by his company commander on 16 May 2017 about his inability to pass the APFT and the initiation of separation action under chapter 11 of AR 635- 200: “You were given multiple opportunities to pass the BCT {basic combat training} Standard, 50 points in all three events, and you have failed. Furthermore, you failed to score above 30 points in your sit up event, and as such, are not eligible to go to the Fitness Training Unit. I am therefore separating you under Chapter 11.” i. While not material, the board may note that his scores below 30 were for the push- up event and not the sit-up event. j. The applicant’s separation was approved by the battalion commander on 23 May 2017. k. 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. l. It is the opinion of the Agency Medical Advisor that a discharge upgrade is not warranted. 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 record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. 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. Evidence in the record show the applicant was unable to successfully pass the army physical fitness test during his initial training. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding insufficient evidence that would warrant a discharge upgrade. The Board denied relief. 2. An uncharacterized discharge is not derogatory; it is recorded when a Soldier has not completed more than 180 days of creditable continuous active duty prior to initiation of separation. It merely means the Soldier has not served on active duty 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 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 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 begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states 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. 3. Army Regulation 635-200 (Active Duty Enlisted Administrative Separation), 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 11 sets policy and provides guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in an entry-level status. It states when separation of a member in entry-level status is warranted by unsatisfactory performance or minor disciplinary infractions (or both) as evidenced by inability, lack of reasonable effort, or failure to adapt to the military environment, the member normally will be separated per this chapter. This separation policy applies to Soldiers who enlisted in the Regular Army, Army National Guard, or U.S. Army Reserve who are in entry level status and, before the date of initiation of separation action, have completed no more than 180 days of creditable continuous active duty or IADT by the date of separation and have demonstrated they are not qualified for retention for one or more of the following reasons: * cannot or will not adapt socially or emotionally to military life * cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline * have demonstrated character and behavior characteristics not compatible with satisfactory continued service * failed to respond to counseling 4. Army Regulation 635-8 (Separation Processing and Documents) 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) is based on regulatory or other authority and can checked against the cross reference in AR 635-5-1 (Separation Program Designator (SPD) Codes). 5. Army Regulation 635-5-1 (Separation Program Designator (SPD) 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 the SPD code and narrative reason JGA – entry level performance and conduct per AR 635-200, chapter 11. 6. 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, chapter 3, as evidenced in a medical evaluation board (MEB); when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by a Military Occupational Specialty (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 physical evaluation board (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. 7. 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. 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. 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. 8. 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. 9. 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. 10. 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. 11. 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) AR20210013662 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1