IN THE CASE OF: 

		BOARD DATE: 16 March 2023

		DOCKET NUMBER: AR20220004645


APPLICANT REQUESTS:  In effect, a physical disability separation or retirement.

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty) 
*	Department of Veterans Affairs (VA) Radiology Report

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 he sustained a lower back injury during basic training that led to 
him being unable to finish training and eventually led to him having back surgery. This 
injury has affected his life since he broke his back.

3.  The applicant provided a VA Radiology Report, dated 30 April 2021, showing:

     a.  Thoracic and Lumbar Spine - Mild multilevel vertebral anterior wedging at the 
thoracolumbar junction. This is commonly anatomic variation. However, as symptoms 
are noted for the T12 level, MRI [magnetic resonance imaging] may be appropriate to 
exclude recent bony injury. Less than 5 degrees thoracic dextrocurvature. Eleven 
degrees lumbar levocurvature. If the patient is slouching during imaging, that can 
produce or accentuate the appearance of scoliosis.

     b.  Posterior fixation L5-S1. Alignment at L5-S1 is anatomic and the disc height is 
approximately normal. Screws appear well seated. Mild posterior offset at multiple 
lumbar levels may reflect underlying bulging discs or positional artifact. There is mid to 
lower lumbar facet arthrosis.

4.  A review of the applicant’s service record shows:

     a.  On 16 April 2015, he underwent a medical prescreen for the purpose of 
enlistment. This examination found that he had a cracked bone/fracture in 2008, he was 
given a boot that he wore for 4 weeks, he had no further problems with this injury. In 
2014, he had his appendix removed because it was enlarged, he had no issues after 
the surgery. The prescreen was approved on 30 April 2015.

      b.  On 30 April 2015, he underwent a medical examination also for the purpose of 
enlistment in the Regular Army (RA), which found him qualified for service.

      c.  On 16 February 2016, he enlisted in the RA for 3 years and 16 weeks. He 
reported to Fort Benning, GA, for completion of initial active-duty training (IADT).

      d.  The available service records are void of the specific documents pertaining to his 
discharge process/action, but does include:

           (1)  Orders Number 104-2200, Headquarters United States Army Garrison, Fort 
Benning, GA, dated 13 April 2016, confirming he had a reporting date and effective 
discharge date of 19 April 2016.  

          (2)  His DD Form 214 that was prepared at the time of separation showing he was 
discharged on 19 April 2016. He completed 2 months and 4 days of net active service 
this period. It also shows in:

*	Character of Service, “Uncharacterized”
*	Reason and Authority, Army Regulation (AR) 635-200, Chapter 11
*	Narrative Reason for Separation, Entry Level Performance and Conduct

5.  His record is also void of documentation showing he was treated for an injury or an 
illness that warranted entry into the Physical Disability Evaluation System (PDES).  
Additionally, there is no indication that he was issued a permanent physical profile or 
underwent a medical evaluation board (MEB) or a physical evaluation board (PEB).

6.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, 
in effect at the time, set policy and provided guidance for the separation of personnel 
because of unsatisfactory performance or conduct (or both) while in an entry level 
status (ELS).

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, 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.

9.  Title 38, Code of Federal Regulations (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 applicant’s previous ABCMR denial, 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 19 April 
2016 uncharacterized discharge and, in essence, a referral to the Disability Evaluation 
System.  He states:

“I {sus}stained a lower back entry {injury} that led to me not being able to finish 
basic training which eventually led to me having back surgery … I broke my back 
which has affected my life since the day I broke while in basic training.”

    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 16 February 2016 and received 
an uncharacterized discharge on 19 April 2016 under provisions provided in chapter 11 
of AR 635-200, Personnel Separations – Enlisted Personnel (17 December 2009), for 
falling below entry level performance and conduct 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 significant medical 
history or conditions.
    d.  Review of the applicant’s AHLTA records show he was seen on four occasions 
between 2 March and 9 March 2016 for low back pain / muscle spasm.  The applicant 
reported the mechanism of injury as carrying a box of MRE’s uphill.  He did not feel a 
pop.  His examination revealed some diffuse tenderness to palpation and that he was 
neurologically intact.  Plain radiographs obtained on 3 March 2016 were normal, with 
normal vertebral heights and alignment, normal disc heights through-out, and without 
signs of arthritis or fracture.  He noted his pain was better at his final visit on 9 March 
2016.

    e.  Neither the applicant’s separation packet nor documentation addressing his 
administrative separation were submitted with the application or uploaded into iPERMS.  

    f.  The applicant submitted a 20 April 2021 VA radiology report of the thoracolumbar 
spine revealed:

“Mild multilevel vertebral anterior wedging at the thoracolumbar junction. This is 
commonly anatomic variation.  However, as symptoms are noted for the T12 
level, MRI may be appropriate to exclude recent bony injury.
Less than 5 degrees thoracic dextrocurvature, 11 degrees lumbar levocurvature. 
If the patient is slouching during imaging, that can produce or accentuate the 
appearance of scoliosis.

Posterior fixation L5-S1. Alignment at L5-S1 is anatomic and the disc height is 
approximately normal.  Screws appear well seated.  Mild posterior offset at 
multiple lumbar levels may reflect underlying bulging discs or positional artifact. 

There is mid to lower lumbar facet arthrosis.

    g.  It is unknown when the applicant underwent the surgery noted in the above 
paragraph but it was after his administrative separation and there is no evidence the 
underlying condition was related to his military service.

    h.  Review of his records in JLV shows he was first seen at a Veterans Hospital 
Administration facility in April 2021 .  From a 12 May 2021 encounter.

“Patient here for focused visit for back pain - with injury pulling at job / NH 
{nursing home} that resulted in ER visit. Says occurred on 4/30 - was trying to 
pull a patient from EMS gurney to a bariatric bed.  Says he felt a pop and his 
back felt like 'it was in two'.  Says he instantly couldn't feel his feet and it 'went up 
both legs'. Went to ER that day.  Imaging done at ER with MRI completed of 
thoracic and lumbar spine.”

    i.  Review of his records in JLV shows he has several VA service-connected disability 
ratings related to his lumbar spine.  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.  These roles and authorities are granted by Congress to the Department of 
Veterans Affairs and executed under a different set of laws.

    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.  

    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 DES is warranted.   


BOARD DISCUSSION:

1.  The Board carefully considered the applicant's request, supporting documents, 
evidence in the records, a medical review, and published Department of Defense 
guidance for liberal consideration of requests for changes to discharges.

2.  The Board concurred with the conclusion of the ARBA Medical Advisor that the 
available evidence does not support a conclusion that the applicant had a condition that 
warranted his referral to the Disability Evaluation System prior to his discharge.  Based 
on a preponderance of the evidence, the Board determined the applicant’s entry-level 
separation with uncharacterized service 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, 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.  AR 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic 
authority for the separation of enlisted personnel.

	a.  An honorable discharge is a separation with honor and entitles the recipient to 
benefits provided by law. The honorable characterization is appropriate when the quality 
of the member'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.  A general discharge is a separation from the Army under honorable conditions.  
When authorized, it is issued to a Soldier whose military record is satisfactory but not 
sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 11, provides for the separation of personnel because of unsatisfactory 
performance or conduct (or both) while in an entry-level status. When separation of a 
Soldier in entry-level status is warranted by unsatisfactory performance or minor 
disciplinary infractions (or both) as evidenced by inability, lack of reasonable effort, or 
failure to adapt to the military environment, he or she will normally be separated per this 
chapter. Service will be uncharacterized for ELS under the provisions of this chapter. 
This policy applies to Soldiers in the Regular Army, ARNG, and USAR who have 
completed no more than 180 days of continuous active duty or IADT or no more than 
90 days of Phase II under a split or alternate training option.

      d.  Section II (Terms) of the Glossary defines ELS for RA Soldiers as the first 
180 days of continuous active duty or the first 180 days of continuous active duty 
following a break of more than 92 days of active military service. 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 of Advanced Individual Training.

3.  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 AR 635-40 (Disability 
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 AR 40-501 (Standards of Medical Fitness), 
chapter 3, as evidenced in an MEB; when they receive a permanent medical profile 
rating of 3 or 4 in any factor and are referred by an 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 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.

4.  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.  Soldiers are referred to the disability system when they no longer meet medical 
retention standards in accordance with AR 40-501, chapter 3, as evidenced in an MEB; 
when they receive a permanent physical profile rating of "3" or "4" in any functional 
capacity factor and are referred by a Military Occupational Specialty 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 PEB. The purpose of the MEB is to determine whether the service 
member's injury or illness is severe enough to compromise his or 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 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 are either 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 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 medical 
impairment prevents reasonable performance of the duties required of the Soldier's 
office, grade, rank, or rating.

	d.  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.

	e.  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.

5.  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.

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.

8.  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)	AR20220004645


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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