IN THE CASE OF: BOARD DATE: 8 June 2022 DOCKET NUMBER: AR20210017290 APPLICANT REQUESTS: * a medical discharge * an upgrade of his uncharacterized discharge to honorable * a video/telephonic appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * two DD Forms 149 (Application for Correction of Military Record) * email thread, 15 February 2021 * My HealtheVet Records (10 pages) 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 is looking to have his uncharacterized discharge upgraded to honorable and in effect, the narrative reason for separation changed to reflect a medical discharge. He had issues with his feet after basic training and following his separation his seizures became worse. He recently had surgery where they implanted an electric device that has improved his condition. He believes his seizures were further aggravated by military service. During his time at the Military Entrance Processing Station (MEPS), he was sent by a physician to get an electroencephalogram (EEG) test and the results showed his brain waves were “misfiring.” He believes the change in his discharge should be made because the uncharacterized discharge was a way for the Army to deny liability of the damage that was done. The military should have done more to ensure that his seizure disorder would not return. 3. The applicant provides: a. An email thread, dated 15 February 2021, which directs the Board to look at the medications he was given by his podiatrist, in addition to the compression socks and insoles. b. His Department of Veterans Affairs (VA), My HeatheVet medical records, for his treatment received from 19 December 2020 through 4 January 2021. It appears only the foot condition is addressed. 4. A review of the applicant’s service record shows: a. He enlisted in the Maine Army National Guard (MEARNG) on 26 February 2008. b. The service record includes the applicant’s medical evaluations for the purposes of enlistment which indicated he had knee surgery in 2005 and a seizure in 1995 with no additional seizures in more than 10 years. An EEG was annotated and an additional note indicated a normal neuro consultation on 20 February 2008. The applicant was marked qualified for service. * DD Form 2807-1 (Report of Medical History) dated 17 January 2008 * DD Form 2807-2 (Medical Prescreen of Medical History Report) dated 3 January 2008 * DD Form 2808 (Report of Medical Examination) dated 17 January 2008 c. Orders 8063005, dated 3 March 2008, ordered the applicant to initial active duty for training (IADT) with a report date of 25 March 2008 with a subsequent report of 9 June 2008 for Advanced Individual Training (AIT) for a training period of approximately 19 weeks. d. On 11 August 2008, he was released from active-duty training with an uncharacterized characterization of service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 months and 17 days of active service. He was assigned separation code MBK and the narrative reason for separation listed as “Completion of Required Active Service.” It also shows: * Block 11 (Primary Specialty) – None//Nothing Follows * Block 14 (Military Education) – None//Nothing Follows * Block 18 (Remarks) – member has not completed first full term of service e. A discharge memorandum, dated 2 March 2010, indicated the applicant had exceeded 24 months of failing to qualify for his military occupational specialty (MOS) and as such, was being discharged. f. Orders 062-012, dated 3 March 2010, discharged the applicant from the MEARNG with an effective date of 26 February 2010. g. On 26 February 2010, he was discharged from the MEARNG with an uncharacterized characterization of service. His NGB Form 22 (Report of Separation and Record of Service) shows he completed 2 years and 1 day of net service for the period. Block 23 (Authority and Reason) listed “Failure to attend IET within 24 months.” 5. The applicant's 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 was issued a permanent physical profile or 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, with service uncharacterized, 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 635-5), 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. 10. By regulation (AR 635-40), the Army disability system 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 or her office, grade, rank, or rating. The regulation 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. 11. 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. 12. 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. 13. 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 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. 14. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 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, the Army Aeromedical Resource Office (AERO), 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 uncharacterized discharge and, in essence, a referral to the Disability Evaluation System (DES). He states: “I’m looking to have my uncharacterized discharge changed to a medical discharge due to my feet being damaged and the fact of a surgical procedure to correct a seizure disorder that was aggravated by my service. During the processing at MEPS {military entrance processing station}, the doctor sent me to do an EEG {electroencephalogram} and found abnormalities in the brain, that showed brain waves misfiring.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. A DD 214 shows the former Guard Soldier entered active duty for training on 25 March 2008 and received an uncharacterized discharge on 11 August 2008 at the completion of his required active service. It shows Ft. Lee, VA as the station from which he was separated. That no primary specialty is listed in block 11 indicates the applicant did not successfully complete the advanced individual training so as to earn his military occupational specialty (MOS). c. His Report of Separation and Record of Service (NGB Form 22) shows he enlisted in the Maine Army National Guard (MEARNG) on 26 February 2008 and received an uncharacterized discharge on 26 February 2010 under the provisions of paragraph 6- 35d(4) of NGR 600-200, Enlisted Personnel Management (31 July 2009): Failure to attend IET {initial entry training} (phase I or phase II) within 24 months. d. The applicant’s pre-entrance Report of Medical History shows the applicant had a history of having a cyst removed for his right knee asymptomatic and that he had a seizure in 1995. The provider requested an EEG and neurology consult. While the results are not known, the applicant’s Report of Medical Examination shows he was cleared for enlistment. e. Orders published by the MEARNG on 3 March 2008 show the applicant was to report to Ft. Knox, KY for basic combat training on 26 March 2008, and to Ft. Lee, VA on 9 June 2008 for advanced individual training. f. Review of his records in AHLTA shows encounters for right knee pain on 16 May and 23 June 2008. At the second visit, the history for his right knee was noted as an injury three years’ prior which led to surgery to remove a calcified mass. He was requesting release from active duty so he could go and see his orthopedic surgeon. “SM {service member} wants very much to go home, wants out of NG - feels he needs to see his ortho surgeon back home & wants to send his x-rays to surgeon. Explained to SM that his civilian surgeon will not be able to get him out of the NG - such decisions are made by the military.” g. The examination revealed tenderness to palpation about a ligamentously stable knee. Radiographs revealed: “Possible small, faintly calcified loose bodies in the suprapatellar and the popliteal fossa regions. Small amount of fluid in the patellar tendon insertion may be related to an element of strain, tendinitis or others.” h. He also stated that he had been having several weeks of right shin and heel pain. The examination revealed tenderness to palpation “localized in the middle of the tibial shaft.” Radiograph were consistent with a calcaneal stress fracture. However, no tenderness to palpation about the heel was noted at any encounter. i. He was seen by physical therapy on 30 June 2008. The encounter noted the applicant may not graduate because he had been unable to pass the Army Physical Fitness Test (APFT), a requirement for graduation. The note read in part: “21-year-old NG male, AIT student with a graduation date of 18 August, here today with a chief complaint of right sided knee pain for the past 2-3 weeks. SM is not APFT qualified after failing the sit up portion of his most recent APFT. Present medical history associated with no specific mechanism of injury, onset of pain in the knee noted after taking his last APFT, able to complete a Bn {battalion} run since then with increased pain noted after. Past medical history is significant for a right knee scope for calcified mass removal in 2005, EPTS {existed prior to service}. Activity limitations are no running or jumping for the next week. Localizes pain today to the right proximal patellar region.” j. The applicant’s final clinic visit was on 8 July 2008. “Visit for: Needs re-eval for stress fracture of right heel. States tango company will not let soldier follow his profile. PATIENT'S PROFILE EXPIRES 10 JULY 08, GRAD SET FOR 18 AUG, HAS NOT DONE FINAL PT TEST OR LOG WARRIOR.” k. It is unknown why the applicant did not graduate from AIT. However, even if it had been related to a medical condition preventing the applicant from passing the required APFT, there is no evidence it prevented the applicant from completing IET within the required 24 months. l. Review of his records in JLV shows he has been awarded a single VA service connected disability rating of 0% for “flat foot condition.” 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. m. 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. For the reserve components, it also includes discharges prior to completing initial entry training (IET). There are two phases - Basic Combat Training (BCT) and AIT. Because the applicant did not complete AIT, he was in an entry level status at the time of his discharge and so received and uncharacterized discharge. This type of discharge does not attempt to characterize service as good or bad. n. It is the opinion of the ARBA Medical Advisor that neither a discharge upgrade nor a referral of his case to the DES is 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, published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the medical opinion finding that neither a discharge upgrade nor a referral of his case to the DES is warranted. Evidence in the record show the applicant did not complete his advance individual training awarding him a military occupational specialty (MOS) and was discharged from his National Guard unit due failure to attend IET within 24 months. As a result, there is no basis for granting the applicant's request. Therefore, relief was denied. 2. 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. Soldiers are authorized and honorable discharge while in entry-level status only if they complete their active duty schooling and earn their MOS. 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. 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 separation is described as an entry-level separation, with service uncharacterized, 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. 4. Army Regulation 635-5 (Separation Documents – Personnel Separations) 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. 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, 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 an 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. 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. 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. 7. 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. 8. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement). Once a determination of physical unfitness is made, disabilities are rated using the VA schedule of disability rating. 9. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of 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 the authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. These two government agencies operate under different policies. 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. 10. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210017290 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1