IN THE CASE OF: BOARD DATE: 30 September 2022 DOCKET NUMBER: AR20220003920 APPLICANT REQUESTS: his characterization of service be shown as honorable or under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Report of Medical History (entrance) * Report of Medical Examination * Entrance Physical Standards Board (EPSB) Proceedings * DD Form 214 (Certificate of Release or Discharge from Active Duty) * biography and accolades FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), 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 believes his record to be in error and unjust because the current type of discharge does not reflect that he willingly and honorably engaging in the service, that the cause of his problems was his military gear and no fault of his own. 3. The applicant enlisted in the Regular Army for 5 years on 5 November 1991, in pay grade E-3. He did not complete basic or advanced individual training. 4. His entrance examination showed a finding of asymptomatic bunions that at the time was not disqualifying. 5. Due to repeated complaints of pain in his feet from wearing military foot gear during basic training, the applicant was referred to an EPSB. 6. On 20 November 1991, the EPSB found the applicant was suffering from bilateral hallux valgus deformity and bilateral pes planus with moderate tenderness of the exostosis of the bunion deformity bilaterally. The applicant was diagnosed with symptomatic bilateral hallux valgus deformity and symptomatic bilateral pes planus. Both conditions were considered to have existed prior to service. In accordance with Army Regulation 40-501 (Standards of Medical Fitness), the EPSB determined that the applicant was unfit for military service and a retention waiver was not recommended. 7. On 25 November 1991, the Commander, 1st Battalion, 46th Infantry, 4th Training Brigade, Fort Knox, KY, concurred with the recommendation to separate the applicant. 8. On 27 November 1991, the appropriate separation authority approved the discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-11. 9. The applicant was discharged on 5 December 1991. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 5-11 with an uncharacterized character of service. The narrative reason for separation is shown as "Did not meet procurement Medical Fitness Standards – No Disability." He was credited with 1 month and 1 day of net active service. 10. The applicant provides a personal biography showing his post service contributions to his community and included copies of news articles reflecting his post service accomplishments and accolades. 11. Army Regulation 40-501 states medical proceeding must establish that a medical condition was identified by appropriate medical authority within six months of the Soldier's initial entrance on active duty, that the condition would have permanently or temporarily disqualified the Soldier for entry into military service had it been detected at that time, and the medical condition did not disqualify the Soldier from retention in the service. 12. Army Regulation 635-200, paragraph 5-11, in effect at the time, stated the character of service for Soldiers separated under this provision would normally be honorable but would be uncharacterized if the Soldier was in an entry-level status. An uncharacterized discharge is neither favorable nor unfavorable; in the case of Soldiers issued this characterization of service, an insufficient amount of time would have passed to evaluate the Soldier's conduct and performance and recognition for his outstanding leadership in the community. 13. 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 his 5 December 1991 uncharacterized discharge. He states: “I believe the record to be in error or unjust because the current type of discharge that is documented and associated with my service does not reflect one who willingly and honorably engaged in the pursuit of being a member of these United States Armed Forces. The fact that there were medical problems that arose which were caused by my gear and was no fault of my own that prevented my continuation should not count against me.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 shows he entered the Regular Army on 5 November 1991 and was discharged on 5 December 1991 under authority provided by paragraph 5-11 of AR 635-200, Personnel Separations – Enlisted Personnel (17 September 1990): Separation of personnel who did not meet procurement medical fitness standards. c. The applicant’s pre-entrance Report of Medical History and Report of Medical Examination show the applicant to have been in good health, without any significant medical history or conditions. d. The applicant was referred to an Entrance Physical Standards Board (EPSBD) for persistent bilateral foot pain IAW paragraph 5-11 of AR 635-200. 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 aggravated by their military service. e. From the narrative summary for this condition: (1) Past Medical History: This is an 18-year-old black male E1 recruit who complains of bilateral foot pain with the wear of military foot gear since service entry on 5 November 1991. The service member states has had not had significant foot pain bilaterally prior to service entry with wear of civilian foot gear; however, he has had increased incidents of foot pain and almost daily persistent foot pain since he has been required to wear military foot gear since service entry on 5 November 1991. (2) Physical Examination: … reveals a hallux valgus deformity (aka bunion) and pes planus (flat feet) bilaterally with moderate tenderness of the exostosis of the bunion bilaterally. (3) DIAGNOSES: 1. Symptomatic hallux valgus bilaterally (EPTS) {existed prior to service}. 2. Symptomatic pes planus bilaterally (EPTS). (4) Plan: In accordance with AR 40-501 {Standards of Medical Fitness}, chapter 2-10b(5, 7), the service member is found unfit for military service. A waiver is not recommended in this individual’s case due to the static nature of his process. f. Paragraph 2-10b(5) and 2-10b(7) of AR 40-501 (1 July 1987) states these conditions are a cause for rejection for appointment, enlistment, and induction for: “(5) Flatfoot, pronounced cases, with decided eversion of the foot and marked bulging of the inner border, due to inward rotation of the astragalus, regardless of the presence or absence of symptoms. (7) Hallux valgus, if severe and associated with marked exostosis or bunion.” g. His completed Entrance Physical Standards Board (EPSBD) Proceedings (DA Form 4707) was not available for review. However, his company and battalion commanders agreed with the EPSBD recommendation he be discharge for this pre- existing medical condition under authority provided by paragraph 5-11 of AR 635-200. His brigade commander directed the applicant be so discharge on 27 November 1991. h. Given his paragraph 5-11 of AR 635-200 administrative separation without evidence to the contrary, it must be assumed the board determined his medical condition had existed prior to service, had not been permanently aggravated by his military service, did not meet one or more medical enlistment/induction standards, and was not compatible with continued military service. i. Review of his records in JLV shows “No Data.” j. 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. k. It is the opinion of the ARBA 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, 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, and regulatory guidance were carefully considered. The evidence of record shows the applicant was discharged with an uncharacterized character of service. due to not meeting procurement Medical Fitness Standards with no disability. He did not complete training and was not awarded an MOS during his one month and 1 day of net active service. The Board reviewed and agreed with the medical advisor’s finding that without evidence to the contrary, it must be assumed his medical condition had existed prior to service, had not been permanently aggravated by his military service, did not meet one or more medical enlistment/induction standards, and was not compatible with continued military service. Additionally, 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. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 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, USC, 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. Title 10, USC, section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 3. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 3 described the different characterizations of service. a. Paragraph 3-7a states that 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. Only an honorable characterization may be awarded a Soldier upon completion of his/her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under specific reasons for separation, unless an entry-level status separation (uncharacterized) is warranted. b. Paragraph 3-9 states the characterization of service for Soldiers separated under this provision of the regulation will normally be honorable. However, for Soldiers in entry-level status, it will be uncharacterized. A Soldier is in an entry-level status if the Soldier has not completed more than 180 days of creditable continuous active duty prior to the initiation of separation action. c. Paragraph 5-11 stated that members who were not medically qualified under procurement medical fitness standards when accepted for enlistment would be separated. Medical proceedings, regardless of the date completed, must establish that a medical condition was identified appropriate medical authority within 4 months of the member's initial entrance on active duty or active duty for training which: 1) Would have disqualified them for entry into the military service had it been detected at that time; and, 2) Does not disqualify them for retention in the military service under the provisions of Army Regulation 40-501(Standards of Medical Fitness), Chapter 3. 4. Under the current provisions of Army Regulation 635-200, paragraph 5-10 states a Soldier who is found after entry on active duty not to have been qualified under procurement medical fitness standards at the time of enlistment may request to be retained on active duty subject to the conditions listed below. Approval or disapproval of requests for retention under this paragraph is delegated to the separation authority. No Soldier has a right to be retained under this paragraph. Soldiers not retained will be processed for separation. Soldiers will not be retained under this paragraph unless both conditions below are met: a. The separation authority determines, after considering the proceedings of an entrance physical standards board, that the Soldier’s disqualifying condition will not prevent the Soldier from performing satisfactorily throughout his or her period of enlistment in the MOS for which the Soldier is being trained or in another MOS based on the Soldier’s medical condition. b. The Soldier, after being counseled and given the opportunity to obtain legal advice, signs a statement requesting to complete the period of service for which enlisted. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018 [Wilkie Memorandum], 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. 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 on the basis of equity, injustice, or clemency grounds, Boards 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. b. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220003920 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1