IN THE CASE OF: BOARD DATE: 10 August 2023 DOCKET NUMBER: AR20230000374 APPLICANT REQUESTS: * upgrade of her uncharacterized discharge due to failure to meet procurement medical fitness standards to an honorable medical discharge * video or telephonic appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * personal Statement * medical records * Department of Veterans Affairs (VA) Rating Decision, 14 September 2000 * three VA benefits letters FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states she is being denied VA home [loan] and burial benefits due to not having a medical discharge. Her father is buried at a Fort Sam Houston, TX, cemetery; he was a Korean War Prisoner of War. She wants to be buried with him. While on active duty she was ill and denied an opportunity to see a doctor. VA doctors concurred with her that she was ill due to the onset of symptoms of systemic lupus while on active duty. 3. The applicant provided: a. A personal statement indicating that she was a nurse prior to enlistment. She knew that something was wrong due to the severe bruising on her body and swelling in her legs. She requested and opportunity to be examined by a medical doctor and she was told it was a PT issue and that route would be followed up. b. Four Medical Records: (1) Screening Note of Acute Medical Care, dated 3 October 1995, showing she had a knee strain; she was given crutches, 800-milligram Motrin, and was allowed to wear soft shoes for 3 days. (2) Record of Acute Medical Care, dated 4 October 1995, showing she was given light indoor duty and was told to keep her leg elevated. (3) Chronological Record of Medical Care, dated 13 October 1995, showing she was given light indoor duty for 8 days. (4) Statement from the Arthritis Diagnostic and Treatment Center, dated 19 August 1999, stating the applicant was a 38-year-old female who was being followed for Sjogren's Syndrome with a history of positive ANA, positive rheumatoid factor and a documented autoimmune plexopathy affecting her right lower extremity. * she was first seen by Doctor RM in January 1996, at that time, she had a history of chronic retropatellar pain syndrome * during her evaluation, she was found to have positive serologies and a further diagnosis of Sjogren's Syndrome which is an autoimmune disorder which can affect not only connective tissue in the body, but other organs as well * it became clear that she had an autoimmune plexopathy affecting her lower extremities and developed atrophy of her quadricep muscles * she had an underlying autoimmune plexopathy which led to chronic retropatellar pain syndrome involving her lower extremities, right worse than left, and her autoimmune plexopathy was directly related to her autoimmune disorder Sjogren's Syndrome * this is a rare complication of this syndrome and Doctor RM did not fault the initial evaluation and treatment used by military physicians; they were treating a more common disorder of the patellofemoral joint disorder * the fact that she did not improve should have prompted further investigations which were performed while being evaluated in 1996; it is only fair that she be compensated for an illness that most likely started while she was on active duty (5) VA Rating Decision, dated 14 September 2000, confirming service connection for Sjogren's Syndrome and Systemic Lupus Erythematosus, rated 100 percent disabling from 28 May 1999. (6) Three VA Benefits Letters dated 6 June 2012, 2 March 2020, and 14 January 2022. 4. On 17 August 1995, the applicant enlisted in the United States Army Reserve (USAR) for a period of 8 years in pay grade E-4. On 22 August 1995, she was ordered to initial active duty for training (IADT). On 19 September 1995, she was assigned to Fort Leonard Wood, MO, for IADT. 5. A DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings) dated 30 October 1995 shows after careful consideration of medical records, laboratory. findings, and medical examination, the board found the applicant was medically unfit for appointment or enlistment in accordance with current medical fitness standards and in the opinion of the evaluating physicians the condition(s) existed prior to service (EPTS). She had the following medical conditions and/or physical defects. a. Her chief complaint was bilateral knee pain. b. History of Present Illness: The applicant was a 34- year-old female with a 1-month history of bilateral knee pain. Her symptoms worsen with marching, squatting, knee bends or stairs. There had been no injury, paresthesia, locking or buckling noted. She complained of knee pain prior to entering the service with climbing a lot of stairs or doing exertional activities. c. Military History: She entered the reception station on 20 September 1995. She was currently in her 5th week of basic training. d. Physical Examination: Bilateral knees reveal full active range of motion from 0 to 135 degrees. There was no erythema, mass or deformity noted. There was a negative Lachman, McMurray, pivot, and drawer. There was no instability to varus or valgus stress. Q-angle was noted to be 20 to 25 degrees. Strength of the lower extremities was 5/5 and symmetrical. Distal pulses and sensation were intact. Radiographs revealed a Q-angle of 20 to 25 degrees. There was no fracture or dislocation noted. e. Impression: (1) Malalignment of the patella bilaterally, EPTS. (2) Chronic retropatellar pain syndrome secondary to #1. f. Recommendations: This Soldier had an EPTS condition that would preclude satisfactory completion of basic training with the normal rigors of physical activity needed in the military in accordance with (IAW) Army Regulation (AR) 40-501, chapter 2, section i, paragraph 2, dated 2 May 1994. She should be discharged from the service expeditiously for this EPTS condition. She would be given a profile to preclude physical training until that point and time. She would be given an L2 profile for release from training. g. Profile and Assignment Limitations: L3, Code U - No further duty for training purposes. h. The findings were approved by the appropriate approving authority. i. She was informed of the medical findings, and she concurred with the proceedings and requested to be discharged from the US Army without delay. 6. Orders 324-362, dated 20 November 1995, confirm the applicant was assigned to the U.S. Army Transition Point for separation processing. 7. Accordingly, on 22 November 1995, she was discharged under the provisions of AR 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-11. She was credited with completing 2 months and 4 days of net active service. Her service was uncharacterized. Her narrative reason for separation was Failure to Meet Procurement Medical Fitness Standards. 8. 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. 9. 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. 10. 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. 11. 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 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 uncharacterized discharge. She states: Need to include on discharge medical reason having to discharge. Been to PT [physical therapy] at CMTC and refuse to let me see MD. VA doctors later did concur with Dr. R.M that I was ill with the onset of symptoms of systemic lupus. See attached letter, decision review officer rating. I was refused ability to buy home using VA benefits and also informed not eligible to be buried at Ft. Sam Houston c. The Record of Proceedings outlines the applicant s military service and the circumstances of the case. Her DD 214 shows the former USAR Soldier entered active duty for training on 19 September 1995 and received an uncharacterized discharged on 22 November 1995 under the separation authority provided by paragraph 5-11 of AR 635-200, Personnel Separations Enlisted Personnel (17 September 1990): Separation of personnel who did not meet procurement medical fitness standards. Paragraph 5-11a of AR 635-200: Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment, or who became medically disqualified under these standards prior to entry on AD [active duty] or ADT [active duty for training] for initial entry training, will be separated. Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by appropriate military medical authority within 6 months of the soldier s initial entrance on AD for RA [regular Army], or during ADT for initial entry training for ARNGUS [Army National Guard of the United States] and USAR [United States Army Reserve], which (1) Would have permanently or temporarily disqualified him or her for entry into the military service or entry on AD or ADT for initial entry training had it been detected at that time. (2) Does not disqualify him or her for retention in the military service under the provisions of AR 40 501, chapter 3. d. The applicant was seen for a one-week history of bilateral knee pain on 4 October 1995. She was noted to have bilateral pitting edema, bilateral knee effusions, and diffuse tenderness to palpation. She was placed on crutches and light indoor duty. From her 13 October 1995 follow-up encounter: Patient to clinic for follow-up problem of unknown etiology X 2 weeks. Patient states she feels 75% better. No other complaints at this time. e. The applicant was subsequently referred to an Entrance Physical Standards Board (EPSBD) for IAW paragraph 5-11 of AR 635-200 for bilateral knee pain that had failed to respond to conservative treatment. f. EPSBDs are convened IAW paragraph 7-12 of AR 40-400, Patient Administration. This process is for enlisted Soldiers who within their first 6 months of active service are found to have a preexisting condition or develop a condition which does not meet the enlistment standard in chapter 2 of AR 40-501, Standards of Medical Fitness (1 December 1983), but does meet the chapter 3 retention standard of the same regulation. The fourth criterion for this process is that the preexisting condition was not permanently aggravated by their military service. g. From the Entrance Physical Standards Board (EPSBD) Proceedings (DA Form 4707) dated 30 October 1995: Chief Complaint: Bilateral knee pain. History of Present Illness: This is a 34-year-old female with a one-month history of bilateral knee pain. Her symptoms worsen with marching, squatting, knee bends or stairs. There has been no injury, paresthesia, locking or buckling noted. She complained of knee pain prior to entering the service with climbing a lot of stairs or doing exertional activities. Military History: She entered the reception station on 20 Sep 95. She is currently in her 5th week of BCT. Physical Examination: Bilateral knees reveal full active range of motion from 0 to 135 degrees. There is no erythema, mass or deformity noted ... Strength of the lower extremities is 5/5 and symmetrical Impression: 1. Malalignment of the patella bilaterally, EPTS [Existed Prior to Service} 2. Chronic retropatellar pain syndrome secondary to #1. Recommendations: This soldier has an EPTS condition that will preclude satisfactory completion of BCT with the normal rigors of physical activity needed in the military. IAW AR 40-501, chapter 2, section i, para 2, dated 2 May 94. She should be discharged from the service expeditiously for this EPTS condition ... h. The EPSBD determined the condition had developed during her first six months of service, failed the enlistment standards in chapter 2 AR 40-501, had not been permanently aggravated by his military service, and was not compatible with continued service. The applicant agreed with these findings on 13 November 1996, marking and initialing the option I concur with these proceedings and request to be discharged from the U.S. Army without delay. i. Submitted medical documentation shows she was diagnosed with Sjogren s syndrome in 1996. From the National Institute of Arthritis and Musculoskeletal and Skin Diseases website: Sj gren s syndrome is a chronic (long-lasting) autoimmune disorder that happens when the immune system attacks the glands that make moisture in the eyes, mouth, and other parts of the body. The main symptoms are dry eyes and mouth, but other parts of the body may be affected as well, with many people reporting fatigue and joint and muscle pain. In addition, the disease can damage the lungs, kidneys, and nervous system. Sj gren s syndrome predominantly affects women. (https://www.niams.nih.gov/health-topics/sjogrens- syndrome#:~:text=Sj%C3%B6gren's%20syndrome%20is%20a%20chronic,other %20parts%20of%20the%20body.) j. This may well have been the cause of her knee pain and swelling during her period of active duty. However, because it was identified within the first 180 days of her service, she was eligible for and subsequently discharged for a condition which failed enlistment standards. k. An uncharacterized discharge is given to individuals who separate prior to completing 180 days of military service, or when the discharge action was initiated prior to 180 days of service. This type of discharge does not attempt to characterize service as good or bad. Through no fault of her own, she simply had a medical condition which was, unfortunately, not within enlistment standards. l. It is the opinion of the Agency Medical Advisor that neither an upgrade of her discharge nor referral of her case to the DES is warranted. BOARD DISCUSSION: 1. The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant. 2. The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of requests for changes to discharges. 3. The Board concurred with the conclusion of the ARBA Medical Advisor that the evidence confirms the applicant was properly discharged based on an EPTS medical condition. The evidence also confirms the applicant was an entry-level Soldier when she was discharged and therefore her service was uncharacterized in accordance with the governing regulation. Based on a preponderance of the evidence, the Board determined the applicant s uncharacterized service and the reason for her discharge were not in error or unjust. 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, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. 4. 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 an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 5. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with AR 40-501, chapter 3, as evidenced in a medical evaluation board (MEB); when they receive a permanent physical profile rating of "3" or "4" in any functional capacity factor and are referred by a Military Occupational Specialty Medical Retention Board; and/or they are command Referred for a fitness-for- duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and 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 or her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. d. Disability compensation is not an entitlement acquired by reason of service- incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. e. Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 6. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 7. 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, USC, 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. 8. 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. 9. 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. 10. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 5-1 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 5-11 states Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment or who became medically disqualified under these standards prior to entry on active duty or active duty for training for initial entry training may be separated. Such conditions must be discovered during the first 6 months of active duty. For character of service, paragraph 5-1 should be adhered to. c. Section II (Terms) of the Glossary defines entry-level status for Regular Army Soldiers as the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break of more than 92 days of active military service. 11. Section 1556 of Title 10, U.S. Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 12. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230000374 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1