IN THE CASE OF: BOARD DATE: 30 June 2023 DOCKET NUMBER: AR20230000208 APPLICANT REQUESTS: through Counsel: * honorable physical disability retirement in lieu of general discharge under honorable conditions due to a condition, not a disability, or alternately * upgrade of her discharge from general, under honorable conditions to honorable APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel’s brief * documents contained in enclosures 1-16, as enumerated in the enclosures list FACTS: 1. Counsel states: a. The applicant requests referral of her records to the Integrated Disability Evaluation System (IDES) for consideration of medical retirement which should have transpired in lieu of her separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations). The applicant’s command committed a legal error by involuntarily separating her with an administrative separation when laws and regulations required her command to refer to the IDES. Her command further perpetuated an injustice by characterizing her service as general, under honorable conditions, based solely on her limitations due to physical injuries. b. The applicant enlisted in the U.S. Army Reserve (USAR) on 30 December 2020 for a period 8 years, 4 years of which was to be considered an active-duty obligation and 4 years of which was to be served in the Reserve Component. Enclosure (Encl) (1). c. On 16 December 2020, prior to enlisting, the applicant completed the DD Form 2807-2 (Accessions Medical History Report), Encl (2). and on page 3 of the form indicated that she did not have history of any of the following: back pain or back problem, herniated disk, neck pain, back or neck surgery, abnormal curvature of her spine (any part), or foot trouble. d. On 23 December 2020, Dr. R____ G____, MD, performed a medical examination of the applicant and documented the examination on DD Form 2808 (Report of Medical Examination). Encl (3). In block 35, Dr. G____ noted that the applicant's feet had "Normal Arch" and were "Asymptomatic." In block 36, Dr. G____ assessed the applicant's "Spine, other musculoskeletal" as "Normal." Dr. G____ did not make any notes in block 44 concerning the applicant's feet or spine. In block 74, Dr. G____ selected that the applicant "IS MEDICALLY QUALIFIED." In block 77, Dr. G____ did not list any significant or disqualifying medical diagnosis. Dr. G____ signed the DD Form 2808 in blocks 82a and 85a as the examining physician and approving authority. In block 86, Mrs. C____ B____ signed to acknowledge that she reviewed the examination for completeness and accuracy. e. Orders Number 1026059 directed the applicant to report on 26 January 2021, for duty at the 95th Adjutant General Battalion (AG Bn), Fort Sill, OK. Encl (4). f. On 26 January 2021, the applicant biometrically signed the DD Form 4 (Enlistment Reenlistment Document) to be discharged from in Reserve Component and was accepted for enlistment in the Regular Component. Encl (5). g. The applicant’s Enlisted Record Brief (ERB), Encl (6) reflects that she signed in at A Battery, 95th AG Bn, Fort Sill on 26 January 2021. h. The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty), Encl (7) shows the following: that she entered active duty in the regular component on 26 January 2021; that she was separated from active duty on 10 September 2021; and served 7 months, 16 days on active duty. i. The separation authority for the applicant’s separation is listed as Army Regulation 635-200, para 5-17; the narrative reason for her separation is "condition, not a disability"; her characterization of service is Under Honorable Conditions (General). Encl (7). j. On 24 August 2021 , the applicant submitted to her separation physical examination, which is documented on a DD Form 2808 (Report of Medical Examination) as the first record in her medical records, Encl (8). Dr. J____ W____, DO, signed in block 82 as the physician who performed the examination. In block 36, Dr. W____ selected that the applicant’s "Spine, other musculoskeletal" was "Normal," but in block 78 he listed a diagnosis of scoliosis. Id. In block 74, Dr. W____ selected that the applicant "IS MEDICALLY QUALIFIED." Id. k. On 24 August 2021, the applicant completed portions of the DD Form 2807-1 (Report of Medical History), Encl (8) and noted the following: * right foot pain since March 2021 * abdominal cramping and vomiting in June 2021 * trouble sleeping since end of July 2021 * feeling depressed and stressed since July 2021 l. The Standard Form 600 (Chronological Record of Medical Care) from the applicant’s military medical record, Encl (8). is generally devoid of any information. m. The applicant's military medical record, Encl (8). contains copies of a Reynolds Army Health Clinic (RAHC) Form 900 (IMT Sick Slip). The IMT Sick Slip notes a medical condition due to "INJURY" that is "Low Back Pain." The IMT Sick Slip otherwise does not contain any service member data, any information concerning the profiling officer, any unit information, any date, or any signature. n. Through a memorandum dated 26 August 2021, Captain (CPT) S____ M____ notified the applicant that he initiated action to separate her from the Army under the provisions of Army Regulation 635-200, Chapter 5-17, for "Other Designated Physical or Mental Conditions" due to her diagnosis of scoliosis. Encl (9). In that memorandum, CPT M____ recommended that the applicant's service be characterized as "General (under honorable conditions," but he did not note any specific reasons to support such a characterization. At the time of the applicant’s separation, there was not in existence a paragraph 5-17 in Army Regulation 635-200. Rather, Army Regulation 600-35, paragraph 5-14 is the paragraph that addresses "Other designated physical or mental conditions," which would align with the narrative reason stated on her DD Form 214. o. Enclosure {9) includes a memorandum for record dated 12 August 2021 by B____ S____, FNP-BC/PMHNP-BC, which purports to provide a history of the applicant’s encounters for medical examination and treatment; a non-exhaustive list of Ms. S____’s notations is as follows: (1) "25 FEB 21 SPC Liang presented to the Fort Sill Troop Medical Clinic for Back Pain week 5 BCT. 25 FEB 21 L-SPINE Result: No acute findings" (emphasis added). (2) "[The applicant] reported 'approximately 3 weeks ago immediately after performing HB deadlift (attempt 130 for the first time and couldn't get bar of the ground w/ immediate Pl) that worsened after completing the Hammer when sleeping the tent d/t the cold and way she was sleeping (side lying L). The most she had attempted to deadlift prior to this was 110 lbs (pounds) (79 percent of 140) and she notes that she had very minimal instruction on HBDL technique." (3) "6 August 2021: Scoliosis Survey Result: There is an 8.1 degrees levoscoliosis at the mid lumbar spine with the apex of scoliosis at the level of L2-L3 disc space. (4) "Right leg is approximately 0.05 cm shorter compared to the left leg." v. "SPC Liang is hereby recommended for Chapter 5-17…" p. Ms. S____’s memorandum dated 12 August 2021 in Enclosure 9 does not anywhere indicate which medical provider conducted any of the examinations and made the diagnoses described by her memorandum, and neither does the applicant's military medical record at Enclosure (8) document any of the encounters that Ms. S____ describes. q. Enclosure (9) includes a coversheet for initiating an existed prior to service (EPTS) separation for a condition that existed prior to service. Upon information and belief, the applicant's command abandoned its plan for an "EPTS" separation and instead pursued separation for other designated physical or mental conditions. r. Enclosure (9) includes a memorandum for record dated 26 August 2021 by CPT S____ M____ and a developmental counseling form dated 26 August 2021 through which CPT M____ expresses that the applicant's medical ailments that she developed during Basic Combat Training (BCT) are the basis of his recommending that she should receive a service characterization of general instead of a service characterization of honorable. s. Undersigned counsel has made many attempts to secure a copy of the applicant's training records from BCT. As documented in Enclosure (10), efforts to obtain her BCT records include the following: submitting an official request to the U.S. Army Human Resources Command (AHRC) on the Standard Form 180 (Request Pertaining to Military Records) that specifically mentions training records, submitting a request under the Privacy Act to the appropriate department at Fort Sill, OK, and directly emailing various officers and noncommissioned officers (NCOs) at Fort Sill who (upon information and belief) could assist in locating the applicant's records. Additionally, undersigned counsel proffers that efforts to secure the applicant's training records include directly calling the staff duty desk and servicing Judge Advocate for the training battalion to which the applicant was assigned. Unfortunately, her training records have not been produced. t. In the applicant's enclosed letter, Enclosure (11), she describes that CPT M____ made derogatory remarks to her while counseling her on 26 August 2021. The nature of CPT M____'s remarks was that he personally felt the applicant should not receive any benefits of service because she did not complete all requirements of BCT. u. In the applicant's enclosed letter, Enclosure (11), she explains that she began experiencing foot pain before she experienced back pain. She notes, accurately, that providers generally minimized her foot pain, see also Enclosure (8) at 124 (where the doctor "[a]ttempted to reassure pt (patient) that there is no sign today that she has significant plantar fasciitis or stress fracture but she stated she was not reassured). The applicant further states that during BCT she was diagnosed with plantar fasciitis, but this diagnosis is not reflected in her records. Enclosure (11) and compare with Enclosure (8) at 124 (implying that before that day there were signs of plantar fasciitis and stress fracture); see also Enclosure (8) at 227 ("I believe there is likely also a component of plantar fascia pain contributing to her ongoing symptoms ... "). The applicant states that as her foot pain worsened, her back pain also worsened. Enclosure (11). v. The applicant's memory is that she was never afforded an opportunity on active duty before her separation to file a claim for disability. Encl (11). Before her separation, nobody explained to her any information about referral to a Medical Evaluation Board (MEB). Before her separation, nobody explained any information about filing a claim with the Department of Veterans Affairs (VA), and she never declined or refused to sign any document related to information about filing a claim for disability with the VA. w. The VA has diagnosed the applicant with service connected disabilities and has assigned her a combined service-connected disability rating of 80 percent. Enclosure (12). x. Enclosure (13) is a letter from the VA that describes in detail the legal basis for assessing specific evidence of scoliosis in the applicant, its connection to her military service, and its severity. Based on those requirements, the VA assigned a disability rating of 40 percent to the applicant for her service-connected scoliosis. y. Enclosure (14) is a letter from the VA that describes in detail the legal basis for assessing specific evidence of plantar fasciitis in the applicant, its connection to her military service, and its severity. Based on those requirements, the VA assigned a disability rating of 10 percent to the applicant for her service-connected plantar fasciitis. z. Enclosure (15) is a letter from the VA that describes in detail the legal basis for assessing specific evidence of radiculopathy in the applicant, its connection to her military service, and its severity. Based on those requirements, the VA assigned a disability rating of 10 percent to the applicant for her service-connected radiculopathy, right lower extremity. aa. Enclosure (16) is a letter from the VA that describes in detail the legal basis for assessing specific evidence of chronic adjustment disorder in the applicant, its connection to her military service, and its severity. Based on those requirements, the VA assigned a disability rating of 50 percent to the applicant for her service-connected chronic adjustment disorder with mixed anxiety and depressed mood. bb. The Army improperly discharged the applicant under Army Regulation 635-200 when applicable law and regulations required the Army to refer her to the DES. The ABCMR must correct the Army's legal error by referring the applicant to the DES for a determination of whether she should be medically retired from the service. Even if the applicant is not medically retired, her characterization of service should be honorable because there is nothing about her conduct during service that warrants a characterization less than honorable. cc. Soldiers with qualifying medical conditions must he referred to the DES. Congress, the DoD, and the Army have all published requirements on the treatment of Soldiers with serious medical problems, including problems with the musculoskeletal system like scoliosis. See generally References (a)-(i). These authorities are unambiguous about the Army's obligation to ensure its leaders understand and obey the rules for referring eligible Soldiers to the DES. Sadly, the applicant’s separation under Army Regulation 635-200 shows that subordinate leaders often either do not understand or refuse to follow these rules. dd. Department of Defense Instruction (DODI) 1332.18 (Disability Evaluation System), Reference (e), states that the "Secretary of the Military Department concerned will refer Service members who meet criteria for disability evaluation regardless of disability compensation." Referral to the DES is required when a Service member has "one or more medical conditions that ... prevent [them] from reasonably performing [their military] duties ....” "[W]hen the course of further recovery is relatively predictable or within 1 year of diagnosis, whichever is sooner, medical authorities will refer eligible service members into the DES ...” ee. Further, Congress requires the Secretaries of the military departments to follow both the VA Schedule for Rating Disabilities (VASRD) and the interpretation of the schedule that are codified in the Code of Federal Regulations (CFR) Reference (d) at section 1216a (Determinations of disability: requirements and limitations on determinations). ff. Reference (f), 38 CFR, section 4.7la-18 (General Rating Formula for Diseases and Injuries of the Spine), identifies both scoliosis and plantar fasciitis as ratable disabilities. gg. The DOD imposes strict requirements on commands that contemplate withholding DES referral from Soldiers like the applicant. This is true for situations in which a command asserts that a disability existed before service and for situations in which a command asserts that a condition does not amount to a disability. If a command suspects that a potential disability existed before military service, they are required to show "clear and unmistakable evidence [that] demonstrates the disability existed before the Service member's entrance on [his] current period of active duty and was not aggravated by [her] current period of military service." See Ref. (f) at page 39. The command offered no such evidence in the applicant's case. hh. Further, active-duty service members are presumed to be in sound condition before entering active duty. Under Reference (f), the "Secretaries of the Military Departments will presume Service members...on continuous orders to active duty specifying a period of more than 30 days entered their current period of military service in solid condition when the disability was not noted at the time of the Service member's entrance to the current period of active duty. At page 39, para. 7.b. (Emphasis added). Army Regulation 635-200, para 5-10 attempts to be more lenient to commands by purporting to permit the separation of Soldiers who did not meet procurement medical fitness standards, but even under this provision, the Army still requires that "[m]edical providers must establish that a medical condition was identified by an appropriate military medical authority within 180 days of the Soldier's entrance on active duty…" ii. Even if a medical provider believes that a condition may not rise to the level of a disability, DOD policy favors referring the Service member to the DES out of an abundance of caution where a potentially ratable disability has been identified: [T]he Secretaries of the Military Departments should normally evaluate for disability those Service members who would be ineligible for referral to the DES due to [the provider's assessment] when the medical condition or disability is warranted as a matter of equity or good conscience. Reference (c) at page 28. jj. Army regulations further support referral to the DES for Soldiers suffering from service connected physical/medical disorders. kk. Army Regulation 635-200, Reference (a), para 1-34 exhaustively addresses that processing through the DES takes precedence over others means of administrative separation processing. Additionally, Army Regulation 635-200, para 5-14, the paragraph that the command presumably intended to cite as the authority for the applicant’s discharge, also reminds commands at subparagraph d(2): In accordance with paragraph 1-34, Soldiers determined to have a medical condition that may not meet medical fitness standards for retention under Army Regulation 40-501 (Standards of Medical Fitness) will be evaluated under DES. Processing under DES takes precedence over administrative separation processing under this chapter. ll. Army Regulation 40-501, Reference (b), para 3-3 directs: "Soldiers with disqualifying conditions listed in this chapter who do not meet the required medical standards will be referred to the DES…" ( emphasis added). Army Regulation 40-501 , para 3-4 reiterates: "Soldiers with any medical condition, injury, or defect (individually or in combination) that meets the definition of a disqualifying medical condition or physical defect as stated in paragraph 3-1 will be referred to DES" (emphasis added). mm. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation), Ref (c), paragraph 4-1 explains: A Soldier may not be discharged or released from active duty because of a disability until they have made a claim for compensation, pension, or hospitalization with the VA or have signed a statement that their right to make such a claim has been explained, or have refused to sign such a statement. nn. The applicant should have been referred to the DES because she was presumed to be fit for duty at the time of her entry on active duty; she developed one or more unfitting conditions while on active duty; and her unfitting conditions are ratable as disabilities by the VA. Further, no military medical provider identified the condition for which she was separated within 180 days of her entry on active duty. oo. The ABCMR should presume the applicant was fit for duty at the time she reported for basic training because no disability (or potential disability) was noted at the time of her entry on active duty; she served more than 30 days before any potential disability was noted; and her command did not provide clear and unmistakable evidence that she had a disability before entering that period of active duty service. Further, military medical providers apparently discovered her unfitting condition on her 192d day of service after entering Initial Entry Training (IET). pp. As discussed above, an active duty service member is presumed to be in sound condition before entering active duty when no disability is noted at the time of her entry on a period of active duty and when she served more than 30 continuous days on active duty. Ref (e). Here, the applicant entered service on 26 January 2021. Encl (7). On 25 February 2021, exactly 30 days after her entry on active duty, imaging of her spine showed no acute findings. Encl (9). Not until 6 August 2021 , 192 days into her continuous period of active-duty service, was she first noted to have any curvature to her spine. The medical evidence is that the applicant did not have an unfitting disability at either her entry to active duty or even at 30 days into her continuous active-duty service, and no military medical provider identified a disqualifying condition within 180 days of her entry on IET which condition was supposedly present before she entered IET. qq. There is no evidence that the applicant had any unfitting condition or disability before entering active duty. Although the regulatory burden is not on the applicant, but lies squarely with the command to demonstrate through clear and unmistakable evidence that any disability existed prior to service (Ref (e) at 39 and Army Regulation 635-200, para 5-10), the applicant attests in her statement, Encl (11), that she did not have a disability before entering active duty. Further, the separation packet, Encl (9). shows that the command cared so little about the details that it cited "Army Regulation 635- 200, Chapter 5-17," which did not exist at the time in that regulation. For purposes of requiring referral to the DES, the medical evidence in Encls (2). (3). and (8) establishes that the applicant did not have any disqualifying medical condition when she entered active duty, that she developed injuries like plantar fasciitis during basic training (not before), and that the condition for which she was separated became measurable at some point between 30 days and 192 days of active service-but was not measured until day 192, which is after the 180-day threshold described by Army Regulation 635-200, para 5-10.3 rr. The ABCMR should affirm that at the time of her involuntary separation, the applicant had multiple unfitting conditions that are ratable as a disability by the VA. Not only do Refs (f)-(i) list scoliosis, plantar fasciitis, radiculopathy, and chronic adjustment disorder among conditions that are ratable by the VA, but further, Encls 2-6) conclusively show the VA has rated the applicant for multiple service-connected disabilities. Because the VA has evaluated her and assigned her a disability rating for a service-connected disabilities, there is no question that the Army committed a legal error by involuntarily separating the applicant for supposedly having an unfitting condition that is not a disability. This error was not harmless to the applicant because it resulted in her involuntary separation instead of her referral to the DES as required by Refs A-W. ss. A general characterization of service is fundamentally unjust in the applicant's Case. Even if the ABCMR declines to refer her matter to the DES, the ABCMR should nevertheless correct the injustice of her characterization of service. The ABCMR's corrective action would promote efficiency and avoid the wasting of resources associated with submitting substantially the same petition to the Army Discharge Review Board (ADRB). tt. A general characterization of service has an unfairly prejudicial effect on the applicant when the reasons for her separation from service are associated with injuries and physical conditions that are beyond her control. Although her personal conduct has nothing to do with the reasons for her separation, the commander who initiated the separation action apparently applied his personal bias as the sole justification for recommending a less than honorable characterization of service for the applicant. See Encl 01) (noting that the company commander expressed to the applicant that he did not believe she should receive the benefits associated with an honorable characterization of service). uu. Army Regulation 635-200 apparently contemplates that a command will not cite a Soldier's physical limitations to training as the sole basis for recommending a general characterization of service. Army Regulation 635-200, para 5-lb explains: No Soldier may be a awarded a character of service of general (under honorable conditions) under the chapter unless the Soldier is notified of the specific factors in his or her service record that warrant such a characterization, using the notification procedure. Such characterization of service is normally inappropriate for Soldiers separated under the provisions of paragraphs 5-3, 5-10, 5-11 , 5-13, or 5-14. As a matter of common-sense interpretation and construction of a regulatory provision, all the text of AR 635-200, para 5-lb must be read together so that the entire provision has meaning. Thus, the two sentences in para 5-lb should be viewed as follows: (1) A general characterization of service is normally inappropriate when the basis for separating a Soldier is "Other designated physical or mental conditions." (2) When read together with the understanding that "Other designated physical or mental conditions" on its own is normally inappropriate to justify a general characterization of service, the requirement to cite specific factors to support a general characterization must be understood to require citation to factors that are wholly distinct from only the "Other designated physical or mental conditions" that are the basis of the proposed separation. (3) In the applicant's case, the command's citation to her physical injuries that limited her performance during basic training is not a citation to any factor outside the alleged "Other designated physical or mental conditions" that formed the basis of the separation action. (4) In other words, the command's attempt to justify a less than honorable characterization of service is in reality only a repetition of stating the basis for her separation, i.e. that the applicant had a physical condition that limited her performance, and because the regulation specifically states that a general characterization of service is normally inappropriate when the basis of separation is such a physical condition, the command's repetitive citation to the basis for separation is not a sufficient additional justification to overcome the default rule that a general characterization is inappropriate. vv. Army Regulation 635-200, chapter 18, is a helpful example of the injustice of assigning the applicant a general characterization of service based solely on a physical condition that is beyond her control. Chapter 18 addresses when a Soldier must be separated for failure to meet the Army's body composition standards. Generally, a Soldier would have more control over one's body composition than over a medical condition like scoliosis. Still, para 18-4 expressly limits the characterization of service as follows: "The service of Soldiers separated under this chapter will be characterized as honorable or an uncharacterized description of service in an entry-level status." There is a fundamental injustice in assigning the applicant a general characterization of service solely due to a physical condition (a disability) that is entirely beyond her control when the Army Regulation otherwise contemplates that out-of-shape Soldiers must receive an honorable characterization of service when the sole basis of their separation is being out of shape. ww. Further, there is a fundamental injustice in imposing upon the applicant the lifelong negative consequences associated with a less than honorable characterization of service. The Army is aware of the substantial harm associated with a general discharge, which is evidenced by how the Army requires a board-eligible Soldier to acknowledge this harm when submitting a conditional waiver. For example, Army Regulation 600-35, Figure 2-2 (Sample format for request for conditional waiver), requires the following acknowledgement: "I understand that I may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to me." xx. Thus, the Army is aware that imposing a general characterization of service upon the applicant can cause her to encounter substantial prejudice in civilian life. The applicant came to the United States of America from Taiwan, a place where their democratic institutions are constantly under existential threat, and she volunteered to support and defend our Constitution by joining the Army. After joining the Army, due to no fault associated with her good actions and good intentions, she developed physical disabilities that made her unable to continue service - and in return her command went out of its way to saddle her with an unfairly prejudicial outcome. This outcome does not reflect American values or the Army Values. yy. The ABCMR should take action to correct the legal errors and injustice that have unfairly negatively harmed the applicant. As discussed above, law and regulations required the Army to refer the applicant to the DES before contemplating any potential separation action under Army Regulation 635- 200, and the ABCMR should correct this legal error by referring the applicant to the DES. In the alternative, the ABCMR should correct the fundamental injustice of her characterization of service by changing it to an honorable characterization of service. 2. The applicant states: a. She reported to Fort Sill, OK for Basic Combat Training (BCT) on 26 January 2021. Prior to entering BCT, she worked with a recruiter to ensure that she was qualified to enlist in the Army and prepared for training. When applying for enlistment, she answered honestly to all questions, and she passed the initial physical assessments that were part of the recruitment process. b. Before reporting to Fort Sill, she did not have any of the medical problems that eventually led to her discharge from the Army. She never had any issues with pain in her feet or back before attending BCT. Her whole life, she never had any doctor remark that she had any curvature to her spin, and none of the doctors who performed physical assessments on her during the recruitment process or at MEPS ever assessed that she had any curvature to her spine. Further, she did not have any history of depression or anxiety before joining the Army. She arrived at Fort Sill as a healthy person who was ready to begin training. c. As late as 30 March 2021, she still believed that she was on track to graduate from BCT. Then, 1 week before graduation, she was pulled from training due to her foot pain. In reviewing her medical records, she discovered that providers made multiple references to presumed plantar fasciitis, but at the time nobody stated this diagnosis to her. Instead, Dr. C____ asserted that her pain was nothing more than "phantom pain" in her mind and insisted that she should jog on the treadmill 3 times a week for physical therapy regardless of her complaints about increasing foot pain. She believes this worsened her foot pain, and it is one example of how she was treated differently than she should have been treated. d. Her pain did not improve with physical therapy; it got worse. In August, Dr. C____ asked her to make a decision to stay or leave the Army, which she thought was unfair to put to her because by that time she could not even wear military footwear due to the high level of her pain. In the same week, her primary care provider, Ms. S____, scheduled an x-ray of her spine and legs (for length) because she said that she had found curvatures of her spine that would be, in her words, a good enough reason to send her home. This was the first time anybody had ever raised an issue about curvature of her spine or the relative length of her legs. e. Throughout the whole process of her suffering through this pain and seeking help, nobody every informed her of my right to be referred to the IDES or her right to file any claim with the VA. After she returned home, her husband, a combat veteran with an honorable discharge from the Army, urged her to go to the VA for an evaluation. f. In addition to not being informed by any Army medical providers or her chain of command about my rights, she believes her company commander discriminated against her based on both my gender and national origin. The commander, CPT M____, was frankly very rude in how he talked down to her and told her that she did not deserve the benefits associated with an honorable discharge because she was not physically fit enough to graduate from BCT. g. When she joined the Army in perfect physical and mental condition, she devoted herself to supporting and defending the Constitution of the United States of America. She truly gave her best in training and executed every order to the best of her ability until she suffered injuries. Even after a medical doctor told her to do physical therapy that likely made her injury worse, she kept trying for several months until others gave up on her. h. Due to how she was being treated by both medical providers and her chain of command, she began to feel depressed and anxious while at BCT. Nobody ever considered her feelings, and nobody ever offered to help her with these issues. She feels that when leaders see a Soldier who is suffering for months with physical pain, they should not further minimize that person by looking for the quickest way to get them out of the Army. Beginning in BCT and continuing to her current situation, she has tremendous issues with a lack of self-confidence, a lack of motivation, feelings of sadness, and nearly constant anxiety. She did not have any of these issues before joining the Army. i. Additionally, she still suffers from plantar fasciitis and scoliosis that she developed in the Army. Every day, she suffers while standing, walking, showering, and even sitting. She is crippled to the point of needing a cane to walk and a chair in the shower. Her civilian doctor gave her paperwork to receive a handicapped parking permit because walking is now so painful for her, and she can only wear orthotic shoes for plantar fasciitis that has become chronic. j. On top of these long-lasting physical and mental injuries, she is handicapped by the stigma of a less than honorable characterization of service. In almost every job application, she has to indicate whether she served in the Army, and then she has to acknowledge that she was discharged with a less than honorable characterization of service. Sadly, although she joined the Army to serve the Nation, her discharge from the Army now prevents her from gaining employment in other jobs related to Government service. k. She humbly asks your help because she wants to eventually overcome these setbacks. All the events she described were beyond her control. She was an injured Soldier, not a bad Soldier. She deserved better treatment than what she received at Fort Sill. The VA has formally recognized that she have service-connected disabilities: scoliosis, radiculopathy, plantar fasciitis, and chronic adjustment disorder with mixed anxiety and depressed mood. She asks that the Army now consider these same issues through referral to the IDES. 3. A DD Form 2808 shows the applicant underwent medical examination on 23 December 2020, for the purpose of Regular Army enlistment. She was found medically qualified for enlistment with a physical profile rating of “1” in all factors, with nothing listed in the summary of medical diagnoses or significant or disqualifying diagnoses. 4. The applicant enlisted in the USAR Delayed Entry Program (DEP) on 30 December 2020, and on 26 January 2021, enlisted in the Regular Army. 5. Military Entrance Processing Station (MEPS) Order 1026059, dated 26 January 2021, show the applicant reported to the 95th Adjutant General Battalion, Fort Sill, OK on 26 January 2021, for BCT. 6. The applicant provided an undated RAHC Form 900, presumably pertaining to her although her personally identifying information is not listed on the form, indicates she was given a sick slip for right ankle bone stress injuries. The form lists multiple drills and activities in which she can and cannot participate, does not reflect a physical profile rating or length of time the sick slip covers, and is unsigned by a profiling officer. 7. A second undated RAHC Form 900, also presumably pertaining to the applicant although her personally identifying information is not listed on the form, indicates she was given a sick slip for low back pain. The form lists multiple drills and activities in which she can and cannot participate, does not reflect a physical profile rating or length of time the sick slip covers, and is unsigned by a profiling officer. 8. A Headquarters, U.S. Army Medical Department Activity, RAHC, memorandum for record, dated 12 August 2021, shows the following: a. The applicant was a trainee with Bravo Company, 95th Adjutant General Battalion. She arrived at Reception Battalion on 26 January 2021 and presented to the Fort Sill Troop Medical Clinic (TMC) in week 5 of BCT for back pain. 25 February 2021 L-Spine Results showed no acute findings. She was treated with Motrin, Robaxin, Bengay muscle rub and a physical profile with referral to Physical Therapy. b. Approximately 3 weeks ago, the applicant reported immediate back pain after performing the HB deadlift at 140 pounds (lbs) with inability to get the bar off the ground and worsening pain after completing the hammer and sleeping in the cold tent. She had minimal instruction on the deadlift and the most she had previously lifted was 110 lbs. On the ruck march out to the hammer she fell out approximately 1.5 miles into it due to pain, trembling and physical conditioning. Her lower back pain has worsened since the hammer. c. Scoliosis Survey Result, dated 6 August 2021 [day 193 of the applicant’s training, or 6 months and 12 days], shows the applicant has a 8.1 degree levoscoliosis at the mid lumbar spine with the apex of scoliosis at the level of L2-L3 disc space. Vertebral body height and disc spaces appear within normal limits – mild levoscoliosis at mid lumbar spine. Scanogram Result shows the calculated length of the left leg equals 74.34 centimeters (cm) and the calculated length of the right leg equals 74.29 cm; revealing the right leg is 0.05 cm shorter than the left leg. The applicant is at baseline 0/10 back pain at rest, but will increase to 6-9/10 with activity. d. The applicant was discharged from Physical Therapy on 6 August 2021, per DODI 6130.03, Volume 1 (Medical Standards for Military Service: Appointment, Enlistment or Induction), paragraph 5-16c(3), 5.18(1), 5.30(i) does not meet the standard. The applicant is hereby recommended for separation under the provisions of Army Regulation 635-200, paragraph 5-17, due to training failure secondary to inactive lifestyle; other forms of scoliosis, lumbar; unequal limb length, right femur; unequal leg limb right fibula; unequal limb length, right tibia. The applicant has a history of inability to meet training goals after trying multiple modalities. Risk factors for training failure include low bone density, decrease physical fitness (decondition), and biomechanical factors. The severity of each risk factor varies from Soldier to Soldier, but nevertheless, result in the inability of this Soldier to pass the rigors of BCT. 9. A DA Form 4856 (Developmental Counseling Form) shows the following: a. The applicant was counseled by 95th Adjutant General (AG) Battalion, Bravo Battery Commander, CPT H____, on 19 August 2021, which served as her formal notice she was being recommended for separation for the convenience of the Government under the provisions of Army Regulation 635-200, paragraph 5-17, due to other physical or mental conditions. b. The commander recounts the information included in the U.S. Army Medical Department Activity memorandum dated 12 August 2021 and states she was recommended for paragraph 5-17 discharge by the command teams of Bravo and Charlie Batteries, 95th AG Battalion, who agree with the medical provider’s assessment. c. In addition, the applicant demonstrated performance characteristics which are incompatible with satisfactory continued service. Due to her current behavioral health, medical, and other concerns arising shortly after arrival at BCT, a rehabilitative transfer will serve no useful purpose. Right now, it is in the best interest of the Army to recommend her for separation under the provisions of paragraph 5-17, as she has been diagnosed by a medical provider with a physical or mental condition that prohibits her from completing training and has exceeded 180 days as an entry level status training and is unable to complete BCT. 10. A Standard Form 600 shows the applicant was seen at the RAHC Optometry Clinic on 23 August 2021 for screening test of visual acuity, bilateral for her separation physical and that she was released without limitations. 11. A DD Form 2697, dated 24 August 2021, shows the applicant provided a medical assessment for the purpose of separation, wherein she indicated compared to her last medical assessment her overall health was worse due to right foot pain, lack of sleep, stress, and depression. She had a right foot injury that prevented her from wearing military footwear. She was not referred for further evaluation. 12. A DD form 2807-1 shows the applicant provided information on her medical history on 24 August 2021, in conjunction with a medical examination for Regular Army separation. a. The applicant indicated she experienced the following: * foot trouble; right foot pain since March 2021 (item 12f) * presented to Camanche hospital urgent care in June 2021 for abdominal cramping and vomiting (item 21) * frequent trouble sleeping since July 2021 (item 17d) * depression or excessive worry since July 2021 (item 17f b. The examiner’s summary and elaboration of all pertinent data includes the following remarks: * item 12f: resolving; expect full resolution * item 21: resolved * item 17d: expect full resolution once home * item 17f: expect much improvement 13. A DD Form 2808 shows the applicant underwent medical examination on 24 August 2021, for the purpose of Regular Army separation. She was found medically unqualified for service with a physical profile rating of “1” in all factors and a summary of medical diagnoses listing of scoliosis. No other conditions are listed on the form. 14. A memorandum for record from the Commander, Charlie Battery, 95th AG Battalion (Reception), CPT M____, dated 25 August 2021, shows the following: a. He was initiating action to separate the applicant under the provisions of Army Regulation 635-200, paragraph 5-17 for other designated physical or mental conditions. The reasons for his proposed action were the applicant’s failure to complete training due to training failure as a result of an inactive lifestyle. b. The applicant arrived at Fort Sill, OK, on 26 January 2021 for BCT. She present to the TMC on 26 February 2021 for back pain. She was given medication for symptoms, physical profile, and physical therapy. A scoliosis test was conducted and curvature of the back was noted. The applicant participated in physical therapy and returned to baseline, with pain returning with increased activity. She has a history of inability to meet training goals after multiple modalities. c. Due to the applicant’s current conditioning and in order to return to training, the demonstrated retention potential is poor and rehabilitative transfer will serve no useful purpose or produce a quality Soldier. The applicant has been given a verbal and written counseling regarding this type of discharge and what the possible outcomes could be. 15. A second memorandum from the Commander, Charlie Battery, 95th AG Battalion (Reception), CPT M____, dated 25 August 2021, details his report of proposed separation of the applicant under the provisions of Army Regulation 635-200, paragraph 5-17, and in pertinent part with regard to her potential characterization of service shows the following: * record of trials by court-martial: none * record of other disciplinary action, including non-judicial punishment (include offenses, findings, and sentence): none * reductions and dates thereof: none * whether there is a record of time lost; if so, whether due to absence without leave, confinement, or other reasons: none * note other derogatory data other than Article 15 action and courts-martial: none 16. A third memorandum from the Commander, Charlie Battery, 95th AG Battalion (Reception), CPT M____, dated 26 August 2021, purports to detail his justification for the proposed characterization of the applicant’s service as general (under honorable conditions), quoting portions of Army Regulation 635-200, among them paragraph 5-1 stating “No soldier will be awarded a character of service under honorable conditions under this chapter [chapters not listed] unless the Soldier is notified of the specific factors in his/her service record that warrant such a characterization, using the notification procedure.” This memorandum does not delineate the specific factors in the applicant’s service record warranting a general characterization of service. It does state the applicant has been given a verbal and written counseling regarding this type of discharge. 17. A second DA Form 4856 shows the applicant was again counseled on 26 August 2021, by the Charlie Battery Commander, CPT M____, stating the following: a. CPT M____ provided counseling detailing justification of his recommended characterization of the applicant’s service as general (under honorable conditions). Her general discharge under the provisions of Army Regulation 635-200, paragraph 5-17 is warranted based on her inability to complete BCT and exceeding the 180 days of service in an entry-level status, thereby no longer qualifying for an uncharacterized discharge. b. The applicant’s performance while in attendance at BCT was less than satisfactory as she was unable to perform her duties and complete BCT. She reported back pain to the TMC in week 5 of training and again in August 2021, whereafter she was determined to have failed training based on an inactive lifestyle and other forms of scoliosis, which would have required a waiver upon entry as the condition was disqualifying per Army Regulation 40-501 (Standards of Medical Fitness). 18. On 26 August 2021, the applicant was notified by the Charlie Battery Commander, CPT M____, of his initiation of action to separate her with a general discharge under the provisions of Army Regulation 635-200, paragraph 5-17, due to other designated physical or mental conditions. She was advised of her right to consult with counsel and submit written statements in her own behalf. 19. On 26 August 2021, the applicant acknowledged receipt of notice from her commander informing her of the basis of the contemplated action to separate her under the provisions of Army Regulation 635-200, paragraph 5-17, due to other designated physical or mental conditions, and the rights available to her. She acknowledged having been advised by consulting counsel of her rights, she was not entitled to consideration of her case by an administrative separation board, she did not submit statements in her own behalf, and she waived representation by consulting counsel. She acknowledged understanding she may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issue to her. 20. The applicant’s Enlisted Record Brief (ERB), dated 26 August 2021, shows she had a physical profile rating of “1” in all factors. 21. The applicant’s available records do not contain a DA Form 3349 (Physical Profile) or reflect she was ever issued a permanent physical profile rating for any conditions, including scoliosis, low back pain, plantar fasciitis, or any behavioral health conditions. 22. On 27 August 2021, the applicant’s battalion commander recommended approval of her general discharge under honorable conditions under the provisions of Army Regulation 635-200, paragraph 5-17, for other designated physical or mental conditions. 23. On 31 August 2021, the approval authority directed the applicant’s general discharge under honorable conditions under the provisions of Army Regulation 635-200, paragraph 5-17, for other designated physical or mental conditions. 24. The applicant’s DD Form 214 shows she was given a general discharge, under honorable conditions on 10 September 2021, under the provisions of Army Regulation 635-200, paragraph 5-17, due to a condition, not a disability. She was credited with 7 months and 16 days of net active service and not awarded a Military Occupational Specialty (MOS). 25. The applicant provided four VA Rating Decisions, showing the following: a. A VA Rating Decision, dated 8 December 2021, shows the applicant was granted a service-connected disability rating of 10 percent for right foot plantar fasciitis status/post grade 1-2 talus and calcaneus bone stress fracture, effective 11 September 2021. b. A VA Rating Decision, dated 22 March 2022, shows the applicant was granted a service-connected disability rating of 40 percent for scoliosis with chronic low back pain effective 11 September 2021. c. A VA Rating Decision, dated 21 April 2022, shows the applicant was granted a service-connected disability rating of 10 percent for radiculopathy, right lower extremity, effective 11 September 2021. d. A VA Rating Decision, dated 3 September 2022, shows the applicant was granted a service-connected disability rating of 50 percent for chronic adjustment disorder with mixed anxiety and depressed mood effective 11 September 2021. 26. A VA letter, dated 9 September 2022, shows the applicant has a combined service- connected disability rating of 80 percent. 27. 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. 28. Title 38, USC, 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. 29. Title 38, 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. 30. 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/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is applying to the ABCMR requesting an upgrade of her 16 August 2017 under honorable conditions discharge and a referral to the Disability Evaluation System. and a medical discharge. She states through counsel: “Ms. [Applicant] requests that the ABCMR refer her matter to the Integrated Disability Evaluation System for consideration that she should have been medically retired and not separated under AR 635-200. In the alternative, Ms. [Applicant] requests an upgrade of her discharged characterization from general (under honorable conditions) to honorable ... The command committed a legal error by involuntarily separating Ms. [Applicant} under AR 635-200 when law and regulations required the command to refer her to the Integrated Disability Evaluation System. Further, the command perpetuated an injustice by recommending that she receive a general characterization of service based solely on her limitations due to physical injuries.” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows she entered the regular Army on 26 January 2021 and received an under honorable conditions (general) discharge on 10 September 2021 under the separation authority provided by paragraph 5-17 of AR 635-200, Active Duty Enlisted Administrative Separations (19 December 2016): Other designated physical or mental conditions. She did not graduate advanced individual training. d. Paragraph 5-17a of AR 635-200: Commanders specified in paragraph 1–19 may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability (AR 635–40) [Physical Evaluation for Retention, Retirement, or Separation] and excluding conditions appropriate for separation processing under paragraph 5–11 or 5–13 that potentially interfere with assignment to or performance of duty. Such conditions may include, but are not limited to— (1) Chronic airsickness. (2) Chronic seasickness. (3) Enuresis. (4) Sleepwalking. (5) Dyslexia. (6) Severe nightmares. (7) Claustrophobia. (8) Other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the soldier’s ability to effectively perform military duties is significantly impaired. e. The applicant’s Accessions Medical History Report and accompanying Report of Medical History show she was in good health, without significant medical history or conditions. f. AHLTA shows the applicant first presented with a two-week history of low back pain on 25 February 2021 (onset of pain 16 days after entering the Army). Plain radiographs were normal, there were no significant clinical findings, and she was treated conservatively. She was seen once more in February and nine times between 1 – 17 March, mostly by physical therapy. A scoliosis survey series obtained on 6 August 2021 revealed mild (8.1 degree curve) levoscoliosis of the mid lumbar spine. g. The applicant was seen on 26 March 2021 for right ankle and foot pain (onset 52 days after entering the Army). An MRI of the ankle obtained later that day revealed “Grade 3 bone stress injuries of the distal tibia, talus, calcaneus, and the navicular, and the middle cuneiform; and a small ankle joint effusion. h. Despite four months of treatment for these injuries, they failed to improve to a point where she could return to full duty. Her physical therapist noted this on 6 August 2021 along with the thought the applicant should probably be separated from the Army: 6 AUG: Improving bone stress injuries right ankle/foot; she appears to be perseverating on the fact that she has grade 2 injury and that it is not healing even though it is just on her talus as the other ones have resolved. She states she still cannot run or jog. She has not made any functional improvement since being in physical therapy; at this point, I don't feel she is gaining anything by attending physical therapy. I feel she will be able to return to full function when she is outside of this environment and recommend exit from the Army as soon as possible. Prognosis: poor for return to prior level of function due to perseverating on lack of healing her ankle stress injury. i. On 26 August 2021, her company commander informed her of his initiation of separation action under paragraph 5-17 with a characterization of service as general under honorable conditions: “The reasons for my proposed action are: You have been diagnosed with scoliosis. You have a history of inability to meet training goals after trying multiple modalities. You are unable to pass the rigors of Basic Combat Training. j. On 31 August 2021, her brigade commander directed by be she be separated from the Army prior to the expiration of her current term of service and that her service by characterized as general under honorable conditions. k. Neither of these conditions constituted a disability IAW AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (19 January 2017). The physical therapist had noted that all but one of the stress injuries in her right leg had healed. The natural history of overuse injuries / stress injuries in a healthy individual is complete healing and resolution of symptoms when the offending stressors are removed (e.g., running). There is no evidence these injuries went on to become problematic. Furthermore, there is no evidence the applicant’s condition(s) would have failed the medical retention standards of chapter 3, AR 40-501 prior to her discharge. Thus, there would have been no cause for referral to the Disability Evaluation System. l. Her lumbar scoliosis had existed prior to service and she began having back pain 16 days after entering the Army. Given that the applicant was symptomatic and unable to return to duty, the applicant failed enlistment standards. Paragraph 2-29c of AR 40- 501, Standards of Medical Fitness (14 June 2017): Current deviation or curvature of spine from normal alignment, structure, or function does not meet the standard if: (1) It prevents the individual from following a physically active vocation in civilian life. (2) It interferes with the proper wearing of a uniform or military equipment. (3) It is symptomatic. (4) There is lumbar scoliosis greater than 20 degrees … when measured by the Cobb method. m. Excerpts from “Adolescent Idiopathic Scoliosis: Natural History and Long-Term Treatment Effects” authored by M.A. Asher D.C. Burton, and published in Scoliosis and Spinal Disorders on 31 March 2006: “Curves initially 30°or less tended not to progress whereas curves more than 30° usually progressed ...” Based on these series and many other individual attempts to gain insight in the natural history of adolescent idiopathic scoliosis, it is possible to gain a good idea, albeit incomplete, of the effect of adolescent idiopathic scoliosis on health- related quality of life. Function, based on outcome measures of work and level of disability, of patients with untreated adolescent idiopathic scoliosis do not appear different than controls [22]. However, this study was conducted over a period of time, and possibly in a population, when disability was less of an option. Based on responses to questionnaires scoliosis of even small size may be associated with difficulty in carrying out physical activities, particularly in females with curves greater than 40° [38]. Back pain prevalence is significantly higher than control populations. [22, 39] However, back pain severity and duration may [39] or may not be increased [21, 22]. Pain severity does not correlate with curve size [21, 39]. Curve pattern may be associated with increased pain [23]. When related, thoracolumbar curves seem the most [24, 34] and double curves the least [34] likely to be associated with increased pain. Arthritic changes are not associated with increased pain [22] whereas translatory shift in the thoracolumbar spine may be. [24] … Most patients with untreated adolescent idiopathic scoliosis function at or near normal levels, even though pain is more prevalent.” (https://scoliosisjournal.biomedcentral.com/articles/10.1186/1748-7161-1-2) n. Paragraph E2.1.3.2 of Enclosure 2 of Department of Defense Instruction 1332.38, SUBJECT: Physical Disability Evaluation, defines service aggravation: “The permanent worsening of a pre-Service medical condition over and above the natural progression of the condition caused by trauma or the nature of Military Service.” o. Paragraph E3.P4.5.2.3 of Department of Defense Instruction 1332.38, SUBJECT: Physical Disability Evaluation, 14 November 1996 addresses the presumption of service aggravation of a medical condition. It states in part: “The presumption that a disease is incurred or aggravated in the line of duty may only be overcome by competent medical evidence establishing by a preponderance of evidence that the disease was clearly neither incurred nor aggravated while serving on active duty or authorized training.” p. Paragraph 3-2a(3) of AR 600-8-4, Line of Duty Policy, Procedures, and Investigations (1 September 1990) states: “Only specific findings of “natural progression” of the preexisting disease or injury, based upon well-established medical principles are enough to overcome the presumption of military service aggravation.” q. Service aggravation is defined in the glossary of AR 600-8-4, Line of Duty Policy, Procedures, and Investigations (1 September 1990) Service aggravation a. Medical treatment facilities frequently list a medical condition as "service aggravated" based on the fact that the condition becomes symptomatic under certain conditions found in the military. Symptoms arising when limits imposed by a condition have been exceeded are poor criteria of service aggravation of the condition, itself. b. When an EPTS condition becomes symptomatic under the stress of active duty it may be unfitting but it has not been aggravated by AD {active duty} unless it has been permanently worsened over and above natural progression. r. The applicant’s developmental spinal deformity clearly existed prior to her enlistment and became symptomatic soon thereafter “under certain conditions found in the military.” As noted above, people with such a spinal deformity are more likely to have activity related pain than the general population s. Review of her records in JLV shows she has been awarded several VA service- connected disability ratings, one of which are related to her spine. However, the requirements for an affirmative Army line of duty determination and possible compensation vice a VA service connection, though similar, are different in several respects, this being one of those. The VA will service connect a pre-existing condition when the Veteran has the onset of symptoms during a period of service with little regard to the length of service during which the condition presented. They will also service connect a condition when the onset of the condition is within one year of release from active duty. t. The DES only compensates an individual for service incurred or permanently service aggravated 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. u. It is the opinion of the Agency Medical Advisor neither an upgrade of her discharge nor a referral of her case to the DES is warranted. BOARD DISCUSSION: 1. After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions, the military service record, and regulatory guidance were carefully considered. In addition, the Board considered her medical records, VA documents provided by the applicant, counsel’s petition, the review and conclusions of the advising official, and published DoD guidance for liberal consideration of discharge upgrade request. The Board noted the applicant was counseled by her commander that she was ineligible for an uncharacterized discharge because she did not complete training and would therefore receive a general discharge. The Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. Evidence of record shows the applicant’s lumbar scoliosis existed prior to service as she began having back pain 16 days after entering the Army. The DES only compensates an individual for service incurred or permanently service aggravated 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. The Board determined there is insufficient evidence that shows a medical discharge and/or medical/physical disability retirement was warranted during her period of active service. 3. The Board agreed that the VA provides post-service support and benefits for service connected medical conditions. The VA operates under different laws and regulations than the Department of Defense (DOD). In essence, the VA will compensate for all service connected disabilities. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING xx xx xx 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, 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 Army Regulation 635-40 (Physical 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 Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a Medical Evaluation Board (MEB); when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an Military Occupational Specialty (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 Physical Evaluation Board (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. 2. Army Regulation 635-40 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. 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. b. 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. c. The percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD). The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. 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. 3. Army Regulation 40-501 provides information on medical fitness standards for induction, enlistment, appointment, retention and related policies and procedures. a. Chapter 2 (Physical Standards for Enlistment, Appointment, and Induction) implements DOD Directive 6130.3 (Physical Standards for Appointment, Enlistment, and Induction) and DOD Instruction 6130.4 (Medical Standards for appointment, Enlistment, or Induction in the Armed Forces). This chapter prescribes the medical conditions and physical defects that are causes for rejection for appointment, enlistment, and induction into the military service. Unless otherwise stipulated, the conditions listed in this chapter are those that would be disqualifying by virtue of current diagnosis, or for which the candidate has a verified past medical history. b. The standards of chapter 2 apply to enlisted Soldiers identified within the first 6 months of active duty with a condition that existed prior to service that does not meet the standards of chapter 2 may be separated (or receive a waiver to remain on active duty) following an evaluation by an Entrance Physical Standards Board, in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 5, with multiple exceptions. One such exception are enlisted Soldiers identified within the first 6 months of active duty with a condition that existed prior to service that does not meet the standards of chapter 2 or chapter 3, who must be evaluated by a MEB. The Soldier will then be referred to a PEB unless the Soldier waives his/her right to the PEB. c. Paragraph 2-29 (Spine and sacroiliac joint) states current or history of any condition, including, but not limited to the spine or sacroiliac joints, with or without objective signs that there is lumbar scoliosis greater than 20 degrees, thoracic scoliosis greater than 30 degrees, or kyphosis and lordosis greater than 55 degrees when measured by the Cobb method is disqualifying. d. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individuals in paragraph 3-2. e. Paragraph 3-2 (Application) states these standards apply to all enlisted Soldiers of the Regular Army, among other populations of individuals. f. Paragraph 3-3 (Disposition) states Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by an MEB. g. Paragraph 3-39 (Spine, scapulae, ribs, and sacroiliac joints) states scoliosis with severe deformity with over 2 inches deviation of tips of spinous process from the midline, or of lesser degree if recurrently symptomatic and interfering with military duties is cause for referral to an MEB. 4. 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. 5. Army Regulation 635-200, issued on 19 December 2016, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 5-1 (Characterization of service or description of separation) in effect at the time, states unless the reason for separation requires a specific characterization, a Soldier being separated for the convenience of the Government will be awarded a character of service of honorable, under honorable conditions, or an uncharacterized description of service if in an entry-level status. b. Paragraph 5-1b, in effect at the time, states no Soldier will be awarded a character of service under honorable conditions under this chapter unless the Soldier is notified of the specific factors in his/her service record that warrant such a characterization, using the notification procedure. Such characterization is normally inappropriate for Soldiers separated under the provisions of paragraphs 5-4, 5-11, 5-12, 5-15, 5-16, or 5-17. c. Paragraph 5-17 (Other designated physical or mental conditions), in effect at the time, states a service member may be separated for other designated physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty. A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition. Members may be separated for physical or mental conditions not amounting to disability sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired. For characterization or description of service, see paragraph 5-1. 6. Army Regulation 635-200, issued on 28 June 2021, sets for the basic authority for the separation of enlisted personnel. a. Paragraph 5-1 (Characterization of service or description of separation) in effect at the time, states unless the reason for separation requires a specific characterization, a Soldier being separated for the convenience of the Government will be awarded a character of service of honorable, under honorable conditions, or an uncharacterized description of service if in an entry-level status. b. Paragraph 5-1b, in effect at the time, states no Soldier will be awarded a character of service of general (under honorable conditions) under this chapter unless the Soldier is notified of the specific factors in his/her service record that warrant such a characterization, using the notification procedure. Such characterization is normally inappropriate for Soldiers separated under the provisions of paragraphs 5-3, 5-10, 5-11, 5-13, or 5-14. c. Paragraph 5-14 (Other designated physical or mental conditions) in effect at the time, states a service member may be separated for other designated physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty. A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition. Members may be separated for physical or mental conditions not amounting to disability sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired. For characterization or description of service, see paragraph 5-1. 7. 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. 8. 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. 9. Title 10, U.S. Code, section 1556 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. 10. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230000208 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1