IN THE CASE OF: BOARD DATE: 2 May 2023 DOCKET NUMBER: AR20220010341 APPLICANT REQUESTS: in effect, reconsideration of her previous request for an honorable discharge with a narrative reason for separation of physical disability, vice an uncharacterized discharge for entry level performance and conduct. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge), dated 18 July 2023 * Veterans Affairs (VA) Benefits Summary Letter, dated 30 June 2022 * Army Board for Correction of Military Records (ABCMR) Record of Proceedings, dated 30 May 2013 * DD Form 214 (Certificate of Release or Discharge from Active Duty), ending 17 December 2009 * DD Form 2808 (Report of Medical Examination), dated 10 December 2009 * DD Form 2807-1 (Report of Medical History), dated 10 December 2009 * DD Form 2697 (Report of Medical Assessment), dated 10 December 2009 * Separation Packet FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120020376 on 30 May 2013. 2. In a new argument, the applicant states she was told that she would be medically separated due to her injuries in Basic Military Training. She has since been awarded disability through the VA for her knee Injury. To reiterate, she was told by her immediate commander that she did not want to do the paperwork for the Chapter 5 discharge. She passed out on the finish line during an Army Physical Fitness Test (APFT). She was still injured, but was told to run anyway. Her noncommissioned officers said she didn't want anyone on a profile. There were no disciplinary actions. There should not be a negative narrative for separation, and her character of service should be nothing less than "Honorable." She could not complete the APFT effectively due to her injury. 3. The applicant enlisted in the Army National Guard (ARNG) on 24 November 2008. She entered initial active duty for training on 13 August 2009. 4. The applicant's immediate commander notified her on 9 December 2009 that she was initiating actions to separate her under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), Chapter 11, for entry level status performance and conduct. As the specific reason, her commander noted the applicant's inability to pass the APFT and her lack of motivation toward improving her physical fitness. 5. The applicant acknowledged receipt of the proposed separation action on the same date. She was advised of the reasons for separation and of the rights available to her. She declined the opportunity to consult with counsel and elected not to submit a statement in her own behalf. 6. The applicant's immediate commander formally recommended her separation under the provisions of AR 635-200, Chapter 11, the commander noted the applicant had numerous APFT failures. 7. On 10 December 2009, the applicant underwent a medical examination for separation. The examining physician noted an abnormality with her left knee. 8. On 11 December 2009, the separation authority approved the recommended separation action and directed the issuance of an entry level separation (uncharacterized). 9. A Report of medical assessment, dated 14 December 2009, shows the applicant indicated her medical condition was worse compared to her last examination. She noted a left knee condition. 10. The applicant was released from active duty on 17 December 2009 and returned to the control of the ARNG. Her DD Form 214 confirms she was discharged under the provisions of AR 635-200, Chapter 11, for entry level performance and conduct, with separation code "JGA." Her service was uncharacterized. She completed 4 months and 5 days of net active service this period. 11. The applicant was discharged from the ARNG on 15 January 2010, under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 6-35e, for entry level performance and conduct. Her service was uncharacterized. 12. The applicant petitioned the ABCMR requesting upgrade of her uncharacterized discharge to honorable. On 30 May 2013, the Board voted to deny relief and determined that the overall merits of the case were insufficient as a basis for correction of her records. 13. The applicant provides a VA benefits summary letter that shows effective 6 December 2021, she received a 20% service connected rating for left knee instability and a 10% service connected rating for left knee strain. 14. Soldiers are considered to be in an entry-level status when they are within their first 180 days of active-duty service. The evidence of record shows the applicant was in an entry-level status at the time of her separation. 15. In reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. 16. Based on the applicant's left knee injury, the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. This agency does not provide copies of ARBA Medical Staff reviews to applicant's and/or their legal representatives prior to adjudication of the case. 17. 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 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 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 her uncharacterized discharge and, in essence, a referral to the Disability Evaluation System. c. 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 the former Army National Guard Soldier entered active duty for initial entry training (IET) on 13 August 2009 and received an uncharacterized discharge on 17 December 2009 under provisions provided in chapter 11 of AR 635-200, Personnel Separations – Enlisted Personnel (6 June 2005), for falling below entry level performance and conduct standards. d. This request was previously denied in full on 30 May 2013 (AR20120020376). 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. e. Review of her AHLTA encounters show she was seen for a left ankle sprain on 23 September 2009 at which time she was noted to have pes planus and referred to podiatry. When evaluated by podiatry on 24 September 2009, the provider documented several areas of tenderness and multiple foot abnormalities associated with pes planus. Plain radiographs likewise revealed several abnormalities: “Bilateral pes planus is present. This is more accentuated on the left. Additionally, there is bunion formation on the left first metatarsophalangeal joint and mild primus varus deformity on the right foot. Spurs are noted in the left talonavicular joint.” f. Her next AHLTA encounter was for a four-day history of atraumatic left knee pain on 28 October 2009. She was subsequently diagnosed with patellofemoral pain syndrome (anterior knee) and started on conservative treatment. Follow-up encounters on 13 and 24 November 2009 show no improvement in her symptoms and she was referred to physical therapy. g. At her 1 December 2009 physical therapy evaluation, her pain was more lateral and she was diagnosed with iliotibial band syndrome. Her symptoms still failed to improve and actions were taken to separate her. h. On 9 December 2009, her company commander notified the applicant of the initiation of separation action under the provisions of Chapter 11 of AR 635-200: “Reasons for my proposed action are: You have not been able to pass the Army Physical Fitness Test. You have continually showed a lack of motivation toward improving your physical fitness.” i. That same day, the applicant waived her right to consulting and being represented by counsel as well as declined to submit a statement on her behalf. j. Her pre-separation examination was completed on 10 December 2009. The provider documented tenderness over the anterior and lateral aspects of the knee but no other abnormalities. His diagnoses were left knee patellofemoral pain syndrome, left knee iliotibial band syndrome, and mild anemia. He declared her qualified for separation. k. Her separation under chapter 11 of AR 635-200 with an uncharacterized characterization of service was approve by the battalion commander on 11 December 2009. l. She went to physical therapy one last time, 14 December 2009. The encounter states “Patient her for her 5-17 recommendation.” Paragraph 5-17 of AR 635-200 is “Other designated physical or mental conditions.” The provider wrote: PFC {Applicant} has pain in her left knee for the past six weeks. Plain films on the 24th of November 2009 were negative for any acute process including stress fractures. PFC {Applicant} has increased valgus at left knee predisposing her left patella and iliotibial band to repetitive injury. PFC {Applicant} at this point has been diagnosed with a left iliotibial band friction syndrome. PFC {Applicant}’s condition will recover with rest in time, but the time frame for healing may exceed what is appropriate for the training environment. The prognosis for a full uncomplicated RTD to BCT/AIT is poor at this time. It is my recommendation that this individual be separated on a 5-17 physical.” m. A submitted VA Ratings Decision and review of her records in JLV show she has granted two VA service-connected disability ratings on 6 December 2021; “Knee condition” (20%) and “Limited flexion of knee” (10%). n. Though she has VA service-connected disabilities, 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; or which did not cause or contribute to the termination of their military career. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. o. An uncharacterized discharge is given to individuals on active duty who separate prior to completing 180 days of military service, or when the discharge action was initiated prior to 180 days of service. For the reserve components, it also includes discharges prior to completing initial entry training (IET). There are two phases - Basic Combat Training (BCT) and Advanced Individual Training (AIT). Because the applicant did not complete BCT, he was in an entry level status at the time of his discharge and so received and uncharacterized discharge. This type of discharge does not attempt to characterize service as good or bad. p. It is the opinion of the Agency Medical Advisor that neither a discharge upgrade nor a referral of her 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 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. The evidence of record shows the applicant, a member of the ARNG, entered ADT and did not complete training for award of an MOS. Her chain of command stated she lacked motivation towards her physical fitness and had not been able to pass the APFT. She was discharge for entry level performance and conduct after having completed 4 months and 5 days of active service. 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 unfitness due to physical disability incurred or aggravated during her period of active duty. The Board found no probative evidence to show her medical condition amounted to a disability separation. Based on a preponderance of evidence, the Board determined that the character of service and reason for separation 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 to amend the decision of the ABCMR set forth in Docket Number AR20120020376 on 30 May 2013. 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 1556, provides the Secretary of the Army shall ensure that an applicant seeking corrective action by 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. 2. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides that separation codes are three-character alphabetic combinations that identify reasons for and types of separation from active duty. Separation code narrative reasons are aligned with applicable regulatory authority paragraphs. The separation code "JGA" is the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-200, by narrative reason for entry level performance and conduct. 3. Army Regulation 635-200 sets policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Chapter 3 provides that a separation will be described as entry level with uncharacterized service if the Soldier has less than 180 days of continuous active duty service at the time separation action is initiated. b. Paragraph 3-7a provides that 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. c. Paragraph 3-9 provides that a separation would be described as entry level with uncharacterized service if processing was initiated while a Soldier was in an entry-level status, except when: (1) a discharge under other than honorable conditions was authorized, due to the reason for separation and was warranted by the circumstances of the case; or (2) the Secretary of the Army, on a case-by-case basis, determined a characterization of service as honorable was clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. This characterization was authorized when the Soldier was separated by reason of selected changes in service obligation, for convenience of the government, and under Secretarial plenary authority. d. 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 an 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 entry-level separation under the provisions of this chapter. 4. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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, 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) AR20220010341 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1