IN THE CASE OF: BOARD DATE: 9 May 2022 DOCKET NUMBER: AR20210015410 APPLICANT REQUESTS: in effect the following corrections to his 1994 DD Form 214 (Certificate of Release or Discharge from Active Duty), * item 24 (Character of Service) to show his service was honorable * item 28 (Narrative Reason for Separation) to show he was separated because of a disability APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 214 for the period ending 23 November 1994 * Department of Veterans Affairs (DVA) Rating Decision dated 12 April 2019 * DVA Benefits Letter dated 28 April 2021 FACTS: 1. The applicant did not file within the 3-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 in effect he receives DVA benefits for his service connected right knee instability. At the time of his discharge in 1994, he was told his medical condition existed prior to service. He was discharged while in a training status. He is trying to qualify for other DVA benefits including a Certificate of Eligibility for a VA housing loan. So he can receive other DVA benefits, his DD Form 214 narrative reason for separation must show he was separated because of a medical disability. 3. Prior to enlisting, the applicant underwent medical examinations to determine if he met the medical fitness entrance standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 2 (Physical Standards for Enlistment, Appointment and Induction). He completed Standard Form (SF) 93 (Report of Medical History) on 6 April 1994 indicating he broke his left lower leg when he was 13 years old. He was examined by medical providers who annotated their findings on SF 88 (Report of Medical Examination). A medical provider stated the applicant had a 10 centimeter scar and a 4 centimeter scar on his right lower leg. Further, a medical provider stated after the physical examination that the applicant had a history of injuring his right knee and lower leg. Upon further review, the applicant was found medically qualified to enlist under Army Regulation 40-501. His SF 88 does not show he received any physical limiting profiles. 4. On 7 April 1994 the applicant enlisted in the U.S. Army Reserve (USAR). 5. Also on 7 April 1994, the Military Entrance Processing Station in Richmond, Virginia issued him Orders Number 66-09 ordering him to his initial active duty for training under Title 10, U.S. Code, section 672(d). These orders show he was to report to Fort Jackson, South Carolina on 6 September 1994 for basic combat training and then relocate to Fort Aberdeen Proving Ground, Maryland to attend his advanced individual training. His estimated training period was 22 weeks. Additional instructions within this order states he would return to his home after completing all training requirements. This order was amended by Orders Number 168-13 adjusting his report date to no later than 7 September 1994. 6. On 6 September 1994 he reported to Fort Jackson, SC. 7. On 31 October 1994 the applicant’s Entrance Physical Standards Board met. He had a history of injuring his knees prior to reporting for active duty training. He complained of swelling on his right knee after physical fitness training and running. He also complained of medial knee pain. He had x-rays which showed a large osteochondral defect lateral femoral condyle of his right knee. A medical examination showed his right knee effusion was 2+, his right quadriceps was 41 centimeters, and his left quadriceps was 42 centimeters. He was negative during a Lachman’s test (anterior cruciate ligament (ACL) injury), Drawer test (anterior cruciate ligament), laxity (use of a knee arthrometer to Varus stress test (lateral collateral ligament of the knee), Valgus stress test (tests the integrity of the medical collateral ligament), positive for pain medially during a McMurray’s test without clicks (meniscus tear) and positive for joint tenderness of the knee. The diagnosis was large osteochondral defect of lateral femoral condyle of his right knee. The board recommended the applicant’s separation from the U.S. Army for failure to meet medical procurement standards under Army Regulation 40-501, chapter 2, paragraph 2-39c. He also did not meet the retention standards of Army Regulation 40-501, chapter 3. 8. Two medical doctors who were orthopedic specialists made the recommendation to the approval authority. Additionally, he received a physical profile showing his lower extremities were rated a permanent three (L3). He could not crawl, stoop, run, jump, march or stand for long periods of time. 9. The medical approval authority stated it was not practical to retain the applicant and recommended the applicant’s administrative separation. 10. On 2 November 1994 the applicant’s company commander received the results of the Entrance Physical Standards Board Proceedings as recorded on DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings). His company commander was informed it was his responsibility to counsel the applicant. 11. On or about 4 November 1994 he received a referral to a civilian facility for a magnetic resonance imaging (MRI) of his right knee. He had chronic knee pain and prior x-rays were done, but further evaluation was warranted. 12. During counseling on 7 November 2012, the applicant was informed he was not medically fit for enlistment under Army Regulation 40-501. It was the opinion of medical doctors that his medical condition existed prior to service or entrance onto active duty. The applicant was advised that he could consult with an attorney, either military or a civilian as his expense. If he were retained, he may be involuntarily reclassified into another MOS based on his medical condition. He had 3 days to make an election. If separated, he would be separated under Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5- 11. He further was told he would lose benefits and entitlements upon his discharge. 13. On 7 November 1994 he acknowledged he was personally counseled regarding his options. He elected separation from the U.S. Army. His company commander endorsed his request and his battalion commander also recommended his separation on 8 November 2012. 13. On 21 November 1994, personnel at Fort Jackson issued him Orders Number 224-704 discharging him from the USAR effective 23 November 1994. 14. As required by regulation, he was issued a DD Form 214 documenting his brief period of active service of 2 months and 18 days. His DD Form 214 contains the following pertinent information: * Block 12c (Net Active Service this Period) – 2 months and 18 days * Block 23 (Type of Separation) – discharge * Block 24 (Character of Service) – uncharacterized * Block 25 (Separation Authority) – Army Regulation 635-200, paragraph 5-11 * Block 28 (Narrative Reason for Separation) – failure to meet procurement medical fitness standards 15. The applicant provides his DVA Rating Decision dated 12 April 2019 for the Board’s consideration. The DVA granted him service connection for two medical conditions: * Right knee instability, rating 10 percent * Right knee post-traumatic soft tissue calcifications, distal lateral right thigh with tendonitis and osteoarthritis, rating 10 percent 16. He also provides his 28 April 2021 DVA benefits letter showing as of 11 April 2021 he was granted service connection for gastroesophageal reflux disease with a disabling rating of 60 percent. At that time, his combined rating evaluation was 80 percent. 17. Army Regulation 635-200 provides within paragraph 5-11 for the separation of Soldiers who did not meet medical procurement medical fitness standards for enlistment or who became medically disqualified after entrance onto active duty within the initial 180 days (6 months) of active duty service including active duty for training. Medical proceedings must establish that a medical condition was identified by appropriate military medical authority within 6 months of the Soldier’s initial entrance on active duty for the Regular Army or during initial entry training for USAR Soldiers. The medical condition identified would have permanently or temporarily disqualified the Soldier for entry into the military service or entry on active duty including active duty for training. An entry level status is defined as the first 180 days of creditable continuous active duty. A separation will be described as an entry level separation with service uncharacterized (Block 24 of DD Form 214) if processing is initiated while a Soldier is in entry level status. 18. Based on the applicant’s request and his statement that he has medical conditions warranting consideration of a medical separation or retirement, the Army Review Boards Agency medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. 19. 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. 20. Title 38, U.S. 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. 21. Title 38, Code of Federal Regulation, 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 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. 22. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents, the ROP, and the applicant's records in the Interactive Personnel Electronic Records Management System (iPERMS), and in the VA's Joint Legacy Viewer (JLV). There were no records in the Armed Forces Health Longitudinal Technology Application (AHLTA), or in the Health Artifacts Image Management Solutions (HAIMS), likely due to the age of the case. The applicant requests a change in his DD 214 to reflect discharge for disability. He contends that he was discharged due his right knee condition which he further contends, did NOT exist prior to service. He stated that he was service connected for the right knee condition in 2018. a. In the 06Apr1994 Report of Medical History (for Army Reserve enlistment), the applicant endorsed good health. He also endorsed a history of mild acne; mild leg cramps; boat sickness; left lower leg fracture age 13, status post- surgery. Of note, although he reported surgery on the left lower leg; the physical exam recorded 10 cm and 4 cm scars on the right lower leg. Also of note, there was an addendum note with signature date 07Sep1994, regarding a right knee problem which indicated there were ‘no records or MD visits for the right knee problem’ and ‘see ortho consult’. The ortho consult was not available for this review. Ultimately, the applicant was given an L1 physical profile and he was cleared for duty. b. 31Oct1994 Entrance Physical Standards Board (EPSBD) Proceedings. The applicant reported he bumped knees with someone else the day before he went to MEPS. At the time of the note he reported 3 weeks prior, he began having right knee swelling after a PT run. The exam showed a 2+ effusion and positive provocative testing suggestive of medial meniscal involvement. Diagnosis: Large Osteochondral Defect Lateral Femoral Condyle, Right Knee; which was consistent with then current x-ray findings. A medial meniscus tear was also being ruled out. It was recommended for the applicant to be separated for failure to meet procurement standards of AR 40-501 chapter 2, para 2-39c (any deformity, abnormality, defect, or disease that impairs general functional ability to such an extent as to prevent satisfactory performance of military duty). The condition was determined to have existed prior to service; and not to have been permanently aggravated by service. It was also determined that he did meet retention standards of AR 40-501 chapter 3; although it was also indicated that retention was not practical. c. On 04Nov1994, orthopedics specialty requested an MRI: The applicant was in the 7th week of BCT with complaints of right knee pain. The September 1994 x-ray had been read as essentially normal. The 28Oct1994 x-ray had shown a large ill-defined lucency lateral femoral condyle right knee. The MRI study was to rule out osteochondral defect or other etiology. The x-ray and MRI results were not available for direct review. d. 12Apr2019 VA Rating Decision showed that the Right Knee Instability condition was service connected by the VA at 10% effective 14Jan2019. Right Knee Post-Traumatic Soft Tissue Calcifications, Distal Lateral Right Thigh with Tendonitis and Osteoarthritis at 10% rating, was continued. JLV search today showed that the applicant was total service connected at 100% by the VA for the following: Major Depressive Disorder (100%); Hiatal Hernia (60%); Limited Extension of Knee (10%); Limited Flexion of Knee (0%); and Knee Condition (0%). The search also showed that treatment visits at VA facility started in December 2019. No private treatment notes were submitted for the ensuing 25 years after discharge from service for the right knee condition e. Concerning the applicant’s contention that the knee condition did not exist prior to service; during the EPSBD Proceedings, he did report a preservice injury. He did not report an in-service injury—he reported knee swelling after running for PT. In addition, the record indicated that he was evaluated by orthopedics and radiograph for a right knee condition prior to service. Details of the preservice knee injury were scant, but it was deemed that the injury was significant enough to warrant these evaluations. At the time of the EPSBD Proceedings, the right knee condition merited an L3 physical profile which prohibited crawling, stooping, running, marching, or standing for long periods. The record showed the applicant’s EPSBD Proceedings were reviewed by at least 2 orthopedic specialists and by their signature, endorsed that the knee condition existed prior to service. Evidence was insufficient to support permanent service aggravation—after the EPSBD physical exam and proceedings, there were no treatment records for the right knee available for review until December 2019. Recommendation: Based on medical evidence available for review, no change is warranted to the characterization of service or the narrative reason for discharge. In addition, referral for medical discharge processing 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 applicant’s contentions, the military record, an advisory opinion, and regulatory guidance were carefully considered. The Board concurred with the advisory official finding the applicant’s EPSBD Proceedings were reviewed by at least 2 orthopedic specialists and by their signature, endorsed that the knee condition existed prior to service. The record also shows evidence was insufficient to support permanent service aggravation. The Board determined there is insufficient evidence that shows a medical/disability discharge was warranted during his period of active service. 2. The Board agreed that the VA provides post-service support and benefits for service connected medical conditions. The VA operates under different laws and regulations than the Department of Defense (DOD). In essence, the VA will compensate for all service connected disabilities. Variance in decisions/ratings do not indicate an error on the part of either entity. 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 635-40 (Physical Evaluation for Retention, Retirement, or Separation) in effect at the time, established the Army Physical Disability Evaluation System (PDES) and set forth policies, responsibilities, and procedures that applied in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member (who have completed his or her advanced military training and awarded a military occupational specialty) is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. 3. Army Regulation 635-200 sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers. Readiness is promoted by maintaining high standards of conduct and performance. Paragraph 5-11 provided for the separation of Soldiers who did not meet medical procurement medical fitness standards for enlistment or who became medically disqualified after entrance onto active duty within the initial 180 days (6 months) of active duty service. Medical proceedings must establish that a medical condition was identified by appropriate military medical authority within 6 months of the Soldier’s initial entrance on active duty for the Regular Army or during active duty training for initial entry training for the U.S. Army National Guard and the USAR. A Soldier will not be processed under these procedures if he/she has completed 180 days of active duty. a. The medical diagnosis would have permanently or temporarily disqualified her for entry into the military service or entry on active duty or active duty for training for initial entry training had it been detected at that time. b. No Soldier has a right to be retained under this paragraph. Soldiers not retained will be processed for separation. c. Soldiers can be retained by the separation authority if he or she determines, after considering the findings of an Entrance Physical Standards Board, that the Soldier’s disqualifying condition will not prevent the Soldier from performing satisfactorily throughout their period of enlistment. The board operates informally and reviews all applicable medical records. The purpose of the board is to document the medical condition(s) which existed prior to service and would have precluded induction or enlistment. The board will also note any changes in the Soldier’s physical condition since their entry onto active duty. The Soldier’s commander will counsel him as to their rights including the opportunity to consult with an attorney. d. Soldiers who do not meet the medical fitness standards for retention will be processed per Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) and Army Regulation 40-501 (Medical Services – Standards of Medical Fitness). e. 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. An entry level status is defined as the first 180 days of creditable continuous active duty or active duty for training. f. An honorable characterization of service may be awarded to a Soldier upon completion of their first enlistment period or the period for which called or ordered to active duty or active duty for training provided the Soldier completed training and was awarded a military occupational specialty. 4. Army Regulation 635-5 (Personnel Separation – Separation Documents) states the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. It states to use the following documents when preparing a DD Form 214WS (Worksheet): * DA Form 2-1 (Personnel Qualification Record * separation approval authority documentation * separation orders * any other document authorized for filing in their official military personnel file 5. 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 regulation provides that 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 6. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 7. 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. 8. 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) AR20210015410 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1