IN THE CASE OF: BOARD DATE: 28 July 2023 DOCKET NUMBER: AR20220008545 APPLICANT REQUESTS: in effect, reconsideration of his previous request for upgrade of the characterization of his entry-level separation from uncharacterized to honorable and a change of the narrative reason for separation to disability retirement. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 19 September 2022 * Congressional Privacy Release Form, 29 June 2022 * Congressional correspondence, 19 September 2022 * ARBA letter in response to Congressional correspondence, 19 September 2022 * SF 88 (Report of Medical Examination) (Enlistment), 16 June 1988 * SF 89 (Report of Medical History) (Enlistment), 16 June 1988 * SF 601 (Immunization Record), 17 June 1988 * DA Form 4856 (General Counseling Form), 16 August 1988 * Headquarters (HQ), U.S. Army Training Center and Fort Dix, Fort Dix, Orders 232-126, 19 August 1988 (Release from Active Duty) * NGB Form 22 (Report of Separation and Record of Service), 23 August 1988 * State of Mississippi, Military Department, The Adjutant General's Office (TAGO), Orders 194-7, 28 September 1988 * Letter, Joint Force HQ, TAGO, Mississippi National Guard, 17 May 2022 * Private Medical Evaluation Report, 27 June 2022 * (County) Mississippi Sheriff's Office ID Card, 11 August 2022 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20170008205 on 2 March 2020. 2. The applicant states, in effect: a. He is requesting upgrade of his Entry Level Status discharge and a change of the reason for his discharge to medical disability. He has found powerful information for the Army National Guard of Mississippi showing an entry level physical disability for previous head trauma, obesity, foot abnormalities. He was disqualified from service but sent to boot camp anyway. b. He was suffering from Post-Traumatic Stress Disorder, Traumatic Brain Injury, and other Mental Health issues. c. When he enlisted, he did not know he had issues with his feet, his weight. He was a high school football player and was beefed up to be on the line. He questions why he was sent to basic combat training at Fort Dix. While at BCT he asked for sick call but was denied. 3. The applicant provided copies of: a. His DD Form 149 and a self-authored statement outlined above. b. A Congressional Privacy Release Form, 29 June 2022, granting his U.S. Senator consent for release of personal records by executive agencies for their purview. c. An ARBA letter responding to his U.S. Senator's inquiry into his request for review of his military records. d. An SF 88 and an SF 89, both complete on 16 June 1987, showing the results reported by the examining physician upon his enlistment. While the copies of these forms are difficult to read, they show he had pes planus and a previous head injury in 1986, prior to his enlistment. e. His immunization record, 17 June 1987. f. A DA Form 4856 record of counseling issued to him on 16 August 1988, noting he was being considered for an entry-level separation as a result of lack of motivation and expressing a desire to be released from military service. g. Separation orders issued by HQ, U.S. Army Training Center, Fort Dix, relieving him for active duty training. h. A NGB Form 22, 23 August 1988. i. Separation orders issued by the State of Mississippi, AGO, 28 September 1988. j. A report of a medical evaluation, 27 June 2022, given to him by a private physician, Dr. BS, DPM___, showing a finding of Type 1 diabetes mellites without complication and bilateral plantar fasciitis with collapsing pes planes on weight bearing. The Dr. noted it was theoretically possible that his flat feet caused him to be unable to carry out his military duties in 1988. k. A letter from JFHQ, Mississippi National Guard, noting TAGO was able to locate military service documents he requested. l. A Mississippi (County), Sheriff's ID Card. 4. A review of the applicant's available service records shows : a. The complete service records are not available for review. There were sufficient documents previously provided by the applicant or contained in the available records to complete a review of his case. b. The applicant's DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) showing his enlistment into the Reserve Component and as an enlisted Soldier in the Mississippi Army National Guard is not contained in the available records. A NGB Form 22 shows he enlisted in the MSARNG on 7 June 1988. c. Orders which would have subsequently been issued to him, placing him on active duty for Initial Active Duty Training, are not contained in the available records. d. A DA Form 4656 (General Counseling Form), issued to him by his unit commander while he was in his fourth week of basic combat training, while assigned to Company D, 4th Battalion, 39th Infantry Brigade, Fort Dix, shows his commander recommended his ELS for a lack of motivation to train towards the goals and standards to complete basic training. He showed no improvement in performance, he did not respond to counseling, and he was a poor candidate for military service. e. The complete separation package and/or allied documents leading to a discharge from active duty are not available for review in his case. f. On 4 August 1988, the applicant acknowledged receipt of the Company Commander, Company D, 4th Battalion, 39th Infantry Brigade proposed separation action under provisions of Army Regulation 635-200, Chapter 11 (Entry Level Separations), and elected his rights pertaining thereto. He understood he would receive an ELS with uncharacterized service. He further understood he would not be permitted to apply for reenlistment for 2 years following his separation. He elected: * not to consult consulting counsel * not to make a statement in his own behalf * not to obtain documents that would be sent to the separation authority supporting the proposed separation * not to receive a separation physical * in writing to waive the rights afforded to him g. Orders 232-126, 19 August 1988, issued by HQ, U.S. Army TC and Fort Dix, relieved him from active duty training, discharged him from the Reserve of the Army, and returned him to the ARNG unit, MSARNG, 1 Headquarters and Headquarters Troop, 1st Squadron, 108th AC, Mississippi. h. A DD Form 214 (Certificate of Release or Discharge from Active Duty), showing the period he completed during ADT is not contained in the available records. i. His NGB Form 22, 23 August 1988, shows he was discharged from the MSARNG under the provisions of National Guard Regulation 600-200, Paragraph 8-7f, with uncharacterized service. He completed 2 months and 17 days of net service this period. j. Orders 194-7 issued by TAGO, MSARNG, 28 September 1988, discharged him from the ARNG of the State of Mississippi with uncharacterized service, effective 23 August 1988. The authority was Army Regulation 600-200, Paragraph 11-3a and NGR 600-200. k. The applicant's previous case contains medical documentation post service showing treatment for a cellulitis foot condition, ped planus, a weight condition, blood pressure, diabetes, ulcers, and a head injury that he incurred prior to service. l. There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. m. On 2 March 2020 (ABCMR Docket Number AR20170008205), the Board denied his request for an upgrade of his uncharacterized discharge and a change to the narrative reason for his separation to physical disability. In its finding, the Board considered a medical advisory opinion completed by the ARBA Medical Advisor. 5. MEDICAL REVIEW: a. 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: b. The applicant is again applying to the ABCMR requesting an upgrade of his entry level status (ELS – aka uncharacterized) discharge and in essence, a referral to the Disability Evaluation System (DES). He states: “I am requesting an upgrade from ELS to medical discharge due to powerful information that I have just received from the Army National Guard of Mississippi, Office of the Adjutant General as of May 17th, 2022, and included is a copy of my entry level physical showing previous head trauma, obesity, & feet abnormalities! Physical shows I was Disqualified but I was sent to camp anyway!” c. On his DD 149,the applicant marked that PTSD, TBI, and Other Mental Health are conditions related to his request. d. The Record of Proceedings outlines the applicant’s military service and the circumstances of the case. e. This request was previously denied in full on 2 March 2020 (AR20170008205). Rather than repeat their findings here, the board is referred to the record of proceedings and medical advisory opinion for that case. This review will concentrate on the new evidence submitted by the applicant. f. Given the period of Service under consideration, there are no encounters in AHLTA. g. The applicant’s pre-entrance examination is new evidence. He wrote on his pre- entrance Report of Medical History he was in good health, was not taking any medications, and had sustained a “Head Injury (Knock-out)” in 1986 at age 16. The provider marked “Normal” for all blocks except 36 and 39. Block 36 - Feet - was marked abnormal but the accompanying note is illegible. The note after block 39 is also illegible but it appears to document one or more “Identifying body marks, scars, tattoos.” The only defect/diagnosis listed in block 74 is “#52 4 lbs. O/W [overweight].” The provider did check the box for “Not qualified.” This appears to have not resulted in the applicant’s medical disqualification from service as he was later enlisted into the Army. h. The remaining medical documentation is from the 21st century and of no probative value. i. On 16 August 1988, the applicant was counseled on a possible discharge under chapter 11 of AR 635-200: Entry Level Status Performance and Conduct. The counsel wrote: “PVT [Applicant], you are being considered for a discharge U/P chapter 14, AR 635-200. You have repeatedly expressed a desire to be released from military service. You have shown a total lack of motivation to train toward the goals and standards to complete basic training. PVT [Applicant], you have shown no improvement in performance and you do not respond to counseling. 1LT P. from mental health states you are a poor candidate for military service. I am recommending you for an entry level separation.” j. The applicant wrote underneath this statement: “All lies from commanding officers! My entry level physical proves it beyond any doubt.” This appears to have been recently added as well as the comment he made on the counseling form to address his “Low” training scores: “Low scores due to my feet which are connected to unknown at the time to have hereditary spinal stenosis.” k. Even if the applicant was errantly enlisted into the Army with one or more disqualifying pre-existing medical conditions, he would have received the same characterization of Service when he was discharged under paragraph 5-11 of AR 635- 200: Separation of personnel who did not meet procurement medical fitness standards. Paragraph 5a: “Soldiers who were not medically qualified under procurement medical fitness standards when accepted for initial enlistment or who became medically disqualified under these standards prior to entry on AD or ADT for initial-entry training, will be separated. Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by appropriate military medical authority within 6 months of the soldier's initial entrance on AD for RA, or during ADT for initial entry training for ARNGUS and USAR …” l. Review of his records in JLV shows he is not registered with the Department of Veterans Affairs. m. It is the opinion of the Agency Medical Advisor that neither an upgrade of his discharge nor a referral of his case to the Disability Evaluation System is warranted. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant's request, supporting documents, and evidence in the records. The Board considered the applicant’s contentions and regulatory guidance. 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. As the applicant did not complete the initial period of training, accordance with regulatory guidance, relief is not warranted. 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 to amend the decision of the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20170008205 on 2 March 2020. 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. 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 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. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set policies, standards and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier'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. Chapter 11 provides guidance for the separation of personnel because of unsatisfactory performance, or conduct (or both) while in an entry level status. Chapter 11-3 applies to Soldiers who were voluntarily enlisted in the Regular Army, Army National Guard, or U.S. Army Reserve are in an entry level status and, before the date of the initiation of separation actions, have completed no more than 180 days of creditable continuous active duty or initial active duty training; and have demonstrated they cannot or will not adapt socially or emotionally to military life. c. Entry-Level status. Service will be uncharacterized for separation under the provisions of chapter 11. d. For ARNG and USAR Soldiers, entry-level status begins upon enlistment in the ARNG or USAR. For Soldiers ordered to IADT for one continuous period, it terminates 180 days after beginning training. For Soldiers ordered to IADT for the split or alternate training option, it terminates 90 days after beginning Phase II advanced individual training. e. Entry-level status is defined as: (1) For Regular Army soldiers, entry-level status- is the first 180 days of continuous AD or the first 180 days of continuous AD following a break of more than 92 days of active military service. 2) For ARNGUS and USAR soldiers, entry-level status begins upon enlistment in the ARNG or USAR. For soldiers ordered to IADT for one continuous period, it terminates 180 days after beginning training. For soldiers ordered to IADT for the split or alternate training option it terminates 90 days after beginning Phase II advanced individual training (AIT). (Soldiers completing Phase I Basic Training or BCT remain in entry-level status until 90 days after beginning Phase II. 3. Army Regulation 635-5-1 (Personnel Separations – Separation Program Designators), in effect at the time, listed the specific authorities, regulatory, statutory, or other directive, and reasons for separation from active duty, active duty for training, or full time training duty. The separation program designator JGA corresponded to the narrative reason entry level performance and conduct and the authority Army Regulation 635-200, chapter 11, and corresponded to an entry level type separation. 4. National Guard Bureau Regulation 600-200 (Enlisted Personnel Management) prescribes the criteria, policies, procedures and responsibilities to recruit, enlist, reenlist or extend; classify; provide initial entry training; assign; promote, appoint and reduce in grade; bar to extension or immediate reenlistment; select and appoint to and from Command Sergeant Major; and to separate from service enlisted soldiers in the Army National Guard of the United States (ARNGUS). a. Paragraph 8-7. Types of administrative discharges and character of service. b. Honorable Discharge, is issued on (1) NGB Form 55 to soldiers concurrently discharged from the ARNGUS and as a Reserve of the Army with honor. Character of discharge and service is Honorable. c. Entry level status discharge is an Uncharacterized separation per AR 135-178, paragraphs 1-20 and 9-3. Do not issue a discharge certificate or characterization of service. 5. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation), in effect at the time, established the Army Physical Disability Evaluation System according to the provisions of chapter 61 of Title 10 United States Code and Department of Defense Directive 1332.18. It set forth policies, responsibilities, and procedures that apply in determining whether a member was unfit because of physical disability to perform the duties of his office, grade, rank, or rating. If a member was found unfit because of physical disability, it provided for disposition of the member according to applicable laws and policies. Paragraph 4-24e(3) provided that Based upon the final decision of the Commanding General, U.S. Army Physical Disability Agency, or the Army Physical Disability Review Board, the Commanding General, Military Personnel Center would issue retirement orders or other disposition instruction separation for physical disability with severance pay. Paragraph 4-24b(3) provided PERSCOM will publish orders or issue proper instructions to subordinate headquarters or return any disability evaluation case to U.S. Army Physical Disability Agency (USAPDA) for clarification or reconsideration when newly discovered evidence becomes available and is not reflected in the findings and recommendations. Based on the final decision of USAPDA, PERSCOM will issue retirement orders or: * permanent retirement for physical disability (Title 10, United States Code, Section 1201 or 1204) * placement of the Temporary Disability Retirement List (Title 10, United States Code, Section 1202 or 1205) * separation for Physical Disability with severance pay (Title 10, United States Code, Section 1203 or 1206) 6. On 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 7. The acting Under Secretary of Defense for Personnel and Readiness provided clarifying guidance on 25 August 2017, which expanded the 2014 Secretary of Defense memorandum, that directed the BCM/NRs and DRBs to give liberal consideration to veterans looking to upgrade their less-than-honorable discharges by expanding review of discharges involving diagnosed, undiagnosed, or misdiagnosed mental health conditions, including PTSD; traumatic brain injury; or who reported sexual assault or sexual harassment. 8. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 9. 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) AR20220008545 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1