IN THE CASE OF: 
BOARD DATE: 31 January 2023 
DOCKET NUMBER: AR20220006313 

APPLICANT REQUESTS: correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending on 28 January 2011 to show in: 
. 
Block 24 (Character of Service), honorable instead of uncharacterized 

. 
Block 28 (Narrative Reason for Separation), medical disability instead of failure to meet medical procurement standards 


APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
. 
DD Form 149 (Application for Correction of Military Record) 

. 
DD Form 2808 (Report of Medical Examination), 30 March 2010 

. 
DD Form 2807-1 (Report of Medical History), 30 March 2010 

. 
DA Form 4707-E (Entrance Physical Standards Board (EPSBD)) Proceedings, 12 January 2011 

. 
DD Form 214 (Certificate of Release or Discharge from Active Duty) 

. 
Sleep Apnea Disability Benefits Questionnaire, 19 January 2017 


. Veterans Affairs (VA) Rating Decision, 21 January 2017 FACTS: 
1. 
The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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 the Army discharged him as non-deployable because he required a mask for his sleep apnea. The VA determined his sleep apnea is service related. 

3. 
In support of his application the applicant provides pre-entry physical examinations dated 30 March 2010, which indicates he was generally in good health and qualified for enlistment in the Army. 

. 
DD Form 2807-1 (Report of Medical History) 

. 
DD Form 2808 (Report of Medical Examination) 



4. 
On 12 August 2010 he enlisted in the Regular Army for 3 years and 27 weeks. 

5. 
A DA Form 268 (Report of Suspend Favorable Personnel Actions (Flag), dated 12 January 2011, shows the applicant was flagged for elimination -field initiated effective 12 January 2011. 

6. 
In support of his application the applicant also provides: 


a. A copy of DA Form 4707 (EPSBD) proceedings dated 12 January 2011 that shows: 
(1) 
After careful consideration of medical records, laboratory findings, and medical examination, the board found that the servicemember was medically unfit for enlistment in accordance with current medical fitness standards and in the opinion of the evaluating physicians the condition(s) existed prior to service (EPTS). 

(2) 
While in his 9th week of advanced individual training, the applicant was referred to sick call to be evaluated for sleep apnea because several Soldiers in his unit reported loud snoring, periods of apnea and gasping for air. SleepMed in West Columbia, SC conducted a sleep study which revealed severe obstructive sleep apnea. 

(3) The evaluating physician diagnosed him with obstructive sleep apnea. 

(4) 
The board recommended the applicant be separated from the U.S. Army for failure to meet medical procurement standards in accordance with Army Regulation (AR) 40-501, paragraph 2-30l. 

(5) On 20 January 2011 the findings of the board were approved. 

(6) 
On 24 January 2011 the applicant concurred with the proceedings and requested to be discharged from the U.S. Army without delay. On the same date his company commander endorsed the request, and on an unspecified date, the appropriate authority approved the separation. 

b. 
A DD Form 214 shows he was discharged on 28 January 2011 under the provisions of AR 635-200 (Personnel Separations -Enlisted Personnel), paragraph 5­11, for failed medical/physical procurement standards with an uncharacterized characterization of service. He completed 5 months and 17 days of his 3 year and 27 week contractual obligation. 

c. 
A Sleep Apnea Disability Benefits Questionnaire dated 19 January 2017 states “It is at least as likely as not that the veteran's current sleep apnea is the continuation of and the result of his sleep apnea in the service. This is a chronic condition.” 

d. 
A VA rating decision dated 21 January 2017 shows he was granted a service-connected disability rating of 50 percent effective 12 September 2016 for sleep apnea. 


7. 
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. 

8. 
Title 38, USC, 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. 

9. 
Title 38, CFR, 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. 

10. 
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/or 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 28 January 2011 uncharacterized discharge and, in essence, a referral to the Disability Evaluation System (DES). He states: ““The VA determined that the sleep apnea which caused my release from active duty was service related.” 

b. 
The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 for the period of service under consideration shows he entered the regular Army on 12 August 2010 and was discharged on 28 January 2011 under provisions provided by paragraph 5-11 of AR 635-200, Active Duty Enlisted Administrative Separations 17 December 2009): Separation of personnel who did not meet procurement medical fitness standards. 

c. 
AHLTA shows the applicant was diagnosed with severe sleep apnea on 7 January 2011. From this AHLTA encounter: 


Soldier with history of daytime drowsiness, snoring. Sleep study reveals severe sleep apnea. I believe he is still in EPTS {existed prior to service} range. He is referred for this as per AR 40-501, 2-30L -sleep apnea ­
d. 
He was thus referred to an Entry Physical Standards Board (EPSBD) for his pre­service sleep apnea under provisions provided in paragraph 5-11 of AR 635-200. 

e. 
EPSBDs are convened IAW paragraph 7-12 of AR 40-400, Patient Administration. This process is for enlisted Soldiers who within their first 6 months of active service are found to have a preexisting condition which does not meet the enlistment standard in chapter 2 of AR 40-501, Standards of Medical Fitness, but does meet the chapter 3 retention standard of the same regulation. The fourth criterion for this process is that the preexisting condition was not permanently service aggravated. 

f. 
From his 12 January 2011 Entry Physical Standards Board (EPSBD) Proceedings (DA Form 4707): 


HISTORY OF EPTS CONDITION: The patient is an 18-year-old male. The patient is in his 9th week of AIT {advanced individual training}. He was referred to sick call by his unit for evaluation of sleep apnea. Several Soldiers in hi unit noticed loud snoring, periods of apnea and gasping for air. This was brought to the DST’s attention who had the Soldier come to sick call … Sleep study reveals severe sleep apnea. 
DIAGNOSIS: Sleep apnea, obstructive. 
RECOMMENDATIONS: It is recommended that this Soldier be separated from the US Army for failure to meet medical procurement standards IAW AR 40-501, chapter 2-20L.” 
g. Paragraph 2-30l of AR 40-501, Standards of Medical Fitness (14 December 2007), states: 
“Current sleep disturbances, including, but not limited to sleep apneas, is disqualifying.” 
h. 
The Board concluded the applicant’s medical condition failed medical enlistment standards, was not permanently aggravated by his service, and was not compatible with continued service. The applicant concurred with the board’s findings on 24 January 2011, initialing and selecting “I concur with these proceedings and request to be discharged from the US Army without delay.” 

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. Through no fault of his own, he simply had a medical condition which was, unfortunately, not within enlistment standards. 

j. 
It is the opinion of the Agency Medical Advisor that neither a discharge upgrade nor a referral of his case to the DES is warranted. 


BOARD DISCUSSION: 
After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant’s contentions, the military record, and regulatory guidance. The Board noted that the applicant agreed with the Entry Physical Standards Board (EPSBD) Proceedings. The Board reviewed the provided advisory opinion and concurred with the Agency Medical Advisor in that neither a discharge upgrade nor a referral of his case to the DES is warranted. Based on a preponderance of evidence available for review, the Board determined that relief was not warranted. 
Mbr 1  Mbr 2  Mbr 3  
:  :  :  GRANT FULL RELIEF  
:  :  :  GRANT PARTIAL RELIEF  
:  :  :  GRANT FORMAL HEARING  
:X  :X  :X  DENY APPLICATION  

BOARD DETERMINATION/RECOMMENDATION: 
The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant 
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, U.S. 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 (AR) 40-501 (Standards of Medical Fitness), in effect at the time, in pertinent part, prescribed the medical fitness standards for enlistment, induction and appointment into military service, and retention and separation, including retirement. Chapter 2 (Physical Standards for Enlistment, Appointment, and Induction) paragraph 2-30l, lists sleep apnea as a disqualifying medical condition. 

3. 
AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, established the Army Physical Disability Evaluation System (APDES) according to the provisions of Title 10, U.S. Code, Chapter 61, Retirement or Separation for Physical Disability, and Department of Defense Directive 1332.18 (DES). It set 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. It states the mere presence of an impairment did not, of itself, justify a finding of unfitness due to physical disability. In each case, it was necessary to compare the nature and degree of the physical disability with the duty requirements of the Soldier, based on his or her office, grade, rank, or rating; and a Soldier was presumed to be in sound physical and mental condition upon entering active duty. 

4. 
AR 635-200 (Personnel Separations -Enlisted Personnel), in effect at the time, prescribed policies, standards, and procedures for enlisted administrative separations. 


a. 
An honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and duty performance. 

b. 
Uncharacterized Separations. Soldiers separated in an entry-level status receive an uncharacterized character of service. A separation is an entry level status separation if its processing is initiated during the Soldier's first 180 days of continuous active duty. The Secretary of the Army could, on a case-by-case basis, issue an honorable character of service to entry-level Soldiers when clearly warranted by unusual circumstances involving personal conduct or duty performance. 

c. 
Paragraph 5-11 specifically provided that Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment or who became medically disqualified under these standards prior to entry on active duty or active duty for training for initial entry training may be separated. EPSBD proceedings were required to be convened within the Soldier's first 6 months of active duty service, and had to establish the following: that medical authority identified the disqualifying medical condition(s) within 6 months of the Soldier's initial entrance on active duty; that the condition(s) would have permanently or temporarily disqualified the Soldier from entry into military service or entry on active duty or active duty for training for initial entry training, had it been detected at the time; and that the medical condition did not disqualify him/her for retention in military service. A Soldier disqualified under this provision after entry on active duty could request retention on active duty; the separation authority made the final determination. 


5. 
Section 1556 of Title 10, U.S. 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. 

6. 
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. 

7. 
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. 


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