IN THE CASE OF: BOARD DATE: 17 January 2023 DOCKET NUMBER: AR20220006646 APPLICANT REQUESTS: The applicant requests, in effect: * an upgrade of his service characterization from "Under Honorable Conditions (General)" to "Honorable" * the narrative reason for his separation be changed to a medical disability instead of "Unsatisfactory Performance" * to appear in person before the Board via video/telephone APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Rare Association of Sensorimotor Polyneuropathy and Klinefelter Syndrome Case Report * Lab Results * Progress Notes * Addendum Email * Congressional Inquiry and associated attachments (492 pages): * Email correspondence * Department of Veterans Affairs (VA) medical records FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. 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, in effect, his discharge should be upgraded because his inability to pass the push-up portion of the Army Physical Fitness Test (APFT) can be attributed to a genetic medical condition rather than his laziness and unwillingness to improve the physical condition of his body. In December 2019, he was diagnosed with Klinefelter syndrome, which is a genetic defect linked to having at least one extra "X" chromosome. Since it is genetic and happens at the time of conception of the fetus, that means he was born with this condition and had it at the time of his enlistment. It was noted at the time of his enlistment physical that his genitalia were abnormally small, which is a documented and recognized symptom of Klinefelter syndrome. He also had other symptoms of Klinefelter syndrome such as abnormal height, long legs and broad hips. Since Klinefelter syndrome affects upper body strength, he feels it was the reason for him failing the push-up portion of the APFT and ultimately being discharged from the Army. He acknowledges that this condition is genetic, cannot be cured, and was not acquired because of his service in the military. However, he contends that had an Klinefelter syndrome genetic test been conducted at the time of his entrance medical exam, he would not have been allowed to enlist in the Army. 3. Following a period of service in the U.S. Army Reserve, the applicant underwent a pre-enlistment medical examination on 28 June 1983. a. His Standard Form 88 (Report of Medical Examination) shows the examining physician determined he: * had a "Normal" clinical evaluation * had no defects, diagnoses, or recommendations * was qualified for service b. His Standard Form 93 (Report of Medical History) shows he self-reported: * he was "in excellent health" * he had previously broken a finger * he had been previously treated for: a broken finger; heatstroke; and pleurisy [inflammation of the tissues that line the lung] 4. The applicant enlisted in the Regular Army for a period of 3 years on 22 August 1983. He was promoted to the rank/grade of private first class (PFC)/E-3 on 22 May 1984. 5. The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 7 December 1984 for being derelict in the performance of his duties by failing to stay awake as Charge of Quarters runner, on or about 5 December 1984. His punishment included reduction from PFC to private (PV2)/E-2; forfeiture of $175.00, extra duty for 7 days, and assignment to the Correctional Confinement Facility for 7 days. 6. The applicant was reassigned on a permanent change of station to a unit at Fort Knox, KY with a reporting date of 2 April 1985. 7. The applicant accepted NJP under the provisions of Article 15, of the UCMJ on 12 April 1985 for stealing $20.00 from another Soldier on or about 6 April 1985. His punishment included reduction from PV2 to private (PV1)/E-1 and extra duty for 14 days. 8. A DA Form 4856 (General Counseling Form) shows the applicant was counseled on 9 August 1985, because his wall locker was found unsecured, his room was a mess, and his bed was not made. He was advised that any further violations of this nature could result in a request for disciplinary action. 9. The applicant accepted NJP under the provisions of Article 15, of the UCMJ on 26 September 1985 for failing to go at the time prescribed to his appointed place of duty on or about 21 September 1985. His punishment included restriction for 14 days and extra duty for 14 days. 10. A Report of Mental Status Evaluation, dated 3 October 1985, shows the applicant was psychiatrically for administrative separation deemed appropriate by command. 11. On 4 October 1985, the applicant underwent a pre-separation medical examination. His Standard Form 93 shows he self-reported he was in good condition. 12. The applicant's immediate commander notified the applicant of his intent to initiate actions to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13, for unsatisfactory performance. The basis for this action was the applicant's misconduct. His commander stated this action could result in his service being characterized as either honorable or general, under honorable conditions. 13. On 17 October 1985, the applicant acknowledged receipt of the notification, consulted with counsel, and was advised of the basis for the contemplated actions to separate him and of the rights available to him. He waived consideration of his case by an administrative separation board. He requested consulting counsel. Although he indicated he would submit statements in his own behalf, there are no statements in his available record. 14. The applicant's intermediate commander recommended approval of the applicant's administrative separation under the provisions of Army Regulation 635-200, Chapter 13. On 22 October 1985, the separation authority approved the recommended separation with a general, under honorable conditions characterization of service. 15. Orders and the applicant's DD Form 214 show he was discharged under the provisions of Army Regulation 635-200, Chapter 13 effective 5 November 1985, with a general, under honorable conditions characterization of service. His DD Form 214 shows he completed 2 years, 2 months, and 14 days of net active service and contains the following entries in: * Item 24 (Character of Service) – Under Honorable Conditions (General) * item 25 (Separation Authority) – Army Regulation 635-200, Chapter 13 * item 26 (Separation Code) – JHJ * item 27 (Reentry Code) – RE-3 * item 28 (Narrative Reason for Separation) – Unsatisfactory Performance 16. The applicant’s record is void of and he has not provided any evidence showing he was processed for separation due to failure of the APFT or that he was diagnosed with an unfitting medical condition during his period of service. 17. The applicant provides: a. A Case Report rendered by representatives of the Department of Neurology, Aeginition Hospital, University of Athens School of Medicine and Department of Neurology, 251 Air Force Hospital, Athens Greece entitled "Rare Association of Sensorimotor Polyneuropathy and Klinefelter Syndrome This report describes the case of a 50-year-old man with the rare association of Klinefelter syndrome and peripheral sensorimotor polyneuropathy. In part, it states Klinefelter syndrome is usually diagnosed during adolescence or early adulthood in males presenting with characteristics of infertility, small testes, decreased facial hair, decreased pubic hair, small penis, and a tall body. In adulthood they present, in part, with loss of libido, decreased muscle bulk and tone. b. Lab Results dated 20 December 2019, which show, in part, the applicant was diagnosed with an extra "X" chromosome. This diagnosis is consistent with a diagnosis of Klinefelter syndrome, which is characterized by tall stature, infertility, and gynecomastia. c. Progress Notes dated 2 January 2020, which show a doctor was trying to determine whether the applicant's diagnosis of Klinefelter syndrome was the cause of his neuropathy. d. An addendum email dated 26 January 2022, showing the doctor was not able to attribute the applicant's neuropathy to his diagnosis of Klinefelter syndrome, but she was able to say that Klinefelter syndrome is a genetic condition that has been present since birth. e. A Congressional Inquiry and associated attachments (492 pages): (1) Email correspondence inquiring about the status of the applicant's petition to this Board. (2) VA medical records which show, in part, he is undergoing treatment for Klinefelter syndrome. 18. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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; this includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 19. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. 20. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 21. 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 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 November 1985 under honorable conditions discharge, and in essence, a referral to the Disability Evaluation System (DES). He states: “In December 2019, I was diagnosed with Klinefelter’s Syndrome, which is a genetic defect. Klinefelter’s Syndrome is a chromosomal count with at least one extra “X” chromosome. In my case, I have XXY chromosome. Being genetic, this means I was born with it and had the condition at the time of enlistment … I was allowed entry in the US Military. I had other symptoms of Klinefelter’s Syndrome as well. Other symptoms included: My abnormal height, longer legs than normal and broader hips than normal. Klinefelter’s Syndrome affects upper body strength, among other physical aspects of the human body.” b. The Record of Proceedings outlines the applicant’s military service and the circumstances of the case. The applicant’s signed DD 214 shows he entered the regular Army on 22 August 1983 and was discharged under honorable conditions (general) on 5 November 1985 under the provisions provided in chapter 13 of AR 635- 200, Personnel Management – Enlisted Personnel (15 July 1985): Separation for Unsatisfactory Performance. c. Because of the period of service under consideration, there are no encounters in AHLTA or documents in iPERMS. d. 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. e. The applicant received an Article 15 on 7 December 1984 for dereliction of duty. He received a second Article 15 on 12 April 1985 for stealing money from a fellow Soldier. His third article 15, dated 26 September 1985, was for failure to repair. f. In an undated memorandum, his commander informed him of his recommendation that he be eliminated from the service based upon unsatisfactory performance in accordance with Chapter 13 of AR 635-200. g. The applicant underwent a mental status evaluation on 3 October 1985. The provider documented a normal examination, concluding the applicant was mentally responsible, had the mental capacity to participate in proceedings, and met the medical retention standards in chapter 3 of AR 40-501, Standards of Medical Fitness. h. The applicant’s pre-separation Report of Medical History and Report of Medical Examination were completed on 4 October 1985. They show the applicant to have been in good health, without significant medical history or conditions. i. The recommendation for his discharge under provisions in chapter 13 of 635-200 was approved by COL on 22 October 1985 j. Review of his records in JLV show he receives care as a non-service-connected Veteran and has no diagnosed mental health conditions. k. Being a preexisting genetic condition without evidence of it being permanently aggravated by his military service, he would not have been eligible for DES processing even it his Klinefelter’s Syndrome had been the cause of his administrative separation. l. There is no evidence the applicant had a mental health or other medical condition which would have then contributed to or would now mitigate his multiple UCMJ violations; or that would have failed the medical retention standards of chapter 3, AR 40-501, Standards of Medical Fitness, and been a cause for referral to the DES prior to his discharge. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of her office, grade, rank, or rating prior to his discharge. m. It is the opinion of the ARBA medical advisor neither a discharge upgrade nor a referral of his case to the DES is warranted. BOARD DISCUSSION: 1. 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. 2. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, and the reason for separation. a. The applicant was discharged due to unsatisfactory performance. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the unsatisfactory performance. Additionally, the applicant provided insufficient evidence of post-service achievements or letters of reference in support of a clemency determination. 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. b. The Board agreed that there is no evidence the applicant had a mental health or other medical condition which would have then contributed to or would now mitigate his multiple UCMJ violations; or that would have failed the medical retention standards of chapter 3, AR 40-501, Standards of Medical Fitness, and been a cause for referral to the disability evaluation system prior to his discharge. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of her office, grade, rank, or rating prior to his discharge. c. The applicant was separated under the provisions of chapter 13, due to unsatisfactory performance. Absent his unsatisfactory performance, there was no fundamental reason to initiate separation action against him. The underlying reason for his separate is his unsatisfactory performance. The only narrative reason authorized for this type of discharge is unsatisfactory performance” and the Separation Code associated with this type of discharge is JHJ. 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. 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 regulation provides that 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. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. 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, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. Separation authorities could furnish an honorable discharge when the Soldier's subsequent honest and faithful service over a greater period outweighed the disqualifying entries found in his/her record. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Chapter 13 provides: (1) Commanders could initiate separation action against Soldiers when, in the commanders' judgment: * they would not develop sufficiently to participate in satisfactorily in training and/or become satisfactory Soldiers; * the seriousness of the circumstances was such that the Soldier's retention would have an adverse impact on the military discipline, good order, and morale; and * it was likely the Soldier would continue to be disruptive influences in present and future assignments * it was likely that the circumstances forming the basis for initiation of separation procedures would continue or recur * the ability of the Soldier to perform duties effectively in the future, including potential for advancement or leadership was unlikely (2) Prior to the initiation of separation action, the regulation stipulated that commanders ensure Soldiers had received adequate counseling and rehabilitation. The regulation pointed out that military service was a calling different from any civilian occupation, and as such, commanders were not to consider separation solely due to unsatisfactory performance unless the leadership had made efforts to rehabilitate the Soldiers. (3) The regulation permitted separation authorities to furnish Soldiers separated under this provision with either an honorable or a general discharge under honorable conditions. 4. 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. 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, 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. 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) AR20220006646 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1