IN THE CASE OF: BOARD DATE: 18 October 2023 DOCKET NUMBER: AR20230001664 APPLICANT REQUESTS: in effect, reconsideration of her previous request for correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 26 April 2017, to show she was honorably discharged due to physical disability. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Benefit Letter FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20200008946 on 25 May 2021. 2. The applicant states, in effect, her DD Form 214 needs to be upgraded to honorable service and her narrative reason for separation needs to be changed to physical disability in lieu of a “condition, not a disability.” 3. The applicant provided a VA Benefit letter, dated 22 October 2022, showing she currently has one or more service-connected disabilities with a combined service- connected evaluation of 70 percent (%), effective 1 December 2021. 4. On 6 March 2017, the applicant enlisted in the Regular Army for a period of 5 years and 32 weeks. On 13 March 2017, she was assigned to Fort Jackson, SC, in a trainee status. 5. A Memorandum from Moncrief Army Community Hospital, Fort Jackson, SC, dated 29 March 2017 shows the applicant was seen in the Physical Therapy Clinic at the Troop Medical Clinic (TMC) for pain in both knees and the left hip that developed as a result of normal training activities (running, jumping, and marching). She had a bone scan that showed she had developed early bone stress injuries in both knees and the left hip. She did not qualify for an existed prior to service or a Medical Evaluation Board separation. She did not wish to go on convalescent leave. She just needed more time away from the basic training environment to perform at least 6 to 9 months of regular strength training and conditioning for her knees and hips to tolerate the stresses of basic training without further injury. The examining therapist recommended she receive a Chapter 5-17 separation or other administrative separation as necessary. 6. On 12 April 2017, the applicant was notified of her commander's intent to initiate separation action against her under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17, for “Other Designated Physical or Mental Conditions.” The basis for the proposed action was the applicant's inability to complete basic training, due to early bone stress injuries. 7. On 12 April 2017, the applicant, acknowledged the basis of the contemplated action to separate her under the provisions of Army Regulation 635-200, paragraph 5-17, “Other Designated Physical or Mental Conditions.” She waived consulting counsel and elected not to submit statements in her own behalf. 8. The applicant's commander formally recommended the applicant's separation from service under the provisions of Army Regulation 635-200, paragraph 5-17, “Other Designated Physical or Mental Conditions.” 9. On 20 April 2017, the separation authority approved the recommended discharge with uncharacterized service. 10. On 24 April 207, the applicant was issued orders assigning her to the Army Transition Point with a report date and discharge date of 26 April 2017. 11. Accordingly, on 26 April 2017, the applicant was discharged, under the provisions of Army Regulation 635-200, paragraph 5-17. She was credited with 1 month and 21 days of net active service. * Character of Service, “Uncharacterized” * Separation Authority, AR 635-200, paragraph 5-17 * Separation Code, “JFV” [Physical Condition, Not a Disability] * Reentry Code, “3” * Narrative Reason for Separation, “Condition, Not a Disability” 12. Soldiers are considered to be in an entry-level status when they are within their first 180 days of active-duty service. The evidence of record shows the applicant was in an entry-level status at the time of separation. As a result, her service was appropriately described as “uncharacterized” in accordance with governing regulations. 13. The applicant provides a VA decision letter that shows she was granted a 70 % service-connected disability rating. 14. 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. 15. 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 they reconsider their previous determination that a change in the narrative reason / separation authority for her 26 April 2017 uncharacterized discharge and in essence, a referral to the Disability Evaluation System, were not warranted. She states: “Narrative for separation needs to be updated to Disability as it currently states condition, not a disability. Prior to discharge x-rays were taken which showed disability conditions to the left hip, left tibia and right tibia. X-ray results were read and a med slip was provided to me for medical discharge.” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. Her DD 214 shows she entered the regular Army on 6 March 2017 and received an uncharacterized discharge 26 April 2017 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. d. This request was previously denied by the ABCMR on 25 May 2021 (AR 20200008946). Rather than repeat their findings here, the board is referred to the record of proceedings and medical advisory opinion for that case. This review will concentrate on the new evidence submitted by the applicant. e. The only new documented submitted with this application is a 22 October 2022 VA Benefits letter showing her combined VA service-connected disability rating of 30% was increased to 70%. JLV shows there to be two 20% ratings for left and right “thigh conditions,” and six 10% ratings and one 0% rating for mild limitations of motion in her hips, knees, and ankles. f. Paragraph 5-17 of AR 635-200 authorizes discharges for conditions which interfere with military service but are not service incurred disabilities. From paragraph 5-17a: “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) 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.” g. Her treating physical therapist recommend she be separated under paragraph 5- 17 in a 29 March 2017 memorandum to her commander: PVT {Applicant} has been seen in the Physical Therapy Clinic at TMC {troop medical clinic} for pain in both knees and the left hip that developed as a result of normal training activities (running, jumping, marching). PVT {Applicant} has had a bone scan that showed she has developed early bone stress injuries in both knees and the left hip. I feel that separation from the military will be in this Soldier's best interest at this time. She does not qualify for an EPTS {existed prior to service} or an MEB {medical evaluation board} separation. She does not wish to go on Convalescent Leave at this point in time. PVT {Applicant} just needs more time away from the Basic Combat Training (BCT) environment and then to perform at least 6 to 9 months of a regular strength training and conditioning program that includes progressive impact on hard surfaces for her knees and hips to tolerate the stresses of BCT without further injury. I recommend she gradually return to running at her own pace and tolerance. I recommend PVT {Applicant} receive a Chapter 5-17 separation or other administrative separation as necessary through E 2113th.” h. Paragraph 5-17 of AR 635 200 authorizes discharges for conditions which interfere with military service but are not service incurred disabilities. This paragraph is frequently applied to stress fractures as they are not permanent disabilities: They almost uniformly heal in a healthy individual once the repetitive physical stresses are discontinued. i. The applicant was counseled on the physical therapist’s recommendation on 30 March 2017. She agreed with the counseling and typed above her signature: “Trainee understands the significance of her medical diagnosis and understands the implications of her being separated from service IAW AR 635-200 Chapter 5- 17 (Other designated physical or mental conditions).” j. The applicant’s company commander formally notified her of the initiation of the action to separate her under paragraph 5-17 on 12 April 2017. She acknowledged this on the same day and subsequently waived her right to counsel and to provide a statement k. It is the opinion of the ARBA medical advisor that both a change in her separation authority and a referral of her case to the Disability Evaluation System remain unwarranted. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on public law, policy and regulation. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding that both a change in her separation authority and a referral of her case to the Disability Evaluation System remain without merit. The governing regulation provides that a separation will be described as an entry-level separation, with service uncharacterized, if the separation action is initiated while a Soldier is in entry-level status. 2. The Board noted the applicant completed 1 month and 21 days of net active-duty service and was not awarded a military occupational specialty. An uncharacterized discharge is not derogatory; it is recorded when a Soldier has not completed more than 180 days of creditable continuous active duty prior to initiation of separation. It merely means the Soldier has not served on active duty long enough for his or her character of service to be rated as honorable or otherwise. As a result, there is no basis for granting the applicant's request to show she was honorably discharged due to physical disability. Therefore, the Board denied relief. 3. The Board determined DES compensates an individual only for service incurred condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board found the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20200008946 on 25 May 2021. 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. Title 10, U.S. Code, Section 1201 provides for the physical disability retirement of a member who has either 20 years of service or a disability rating of 30% or greater. 3. 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 less than 30%. 4. Title 38, U.S. Code, Section 1110 (General - Basic Entitlement) provides that 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. 5. Title 38, U.S. Code, Section 1131 (Peacetime Disability Compensation - Basic Entitlement) provides that 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. 6. 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. 7. 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. 8. 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). Once a determination of physical unfitness is made, the PEB rates all disabilities using the “VASRD.” 9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 provides that a separation will be described as entry level with uncharacterized service if the Soldier has less than 180 days of continuous active-duty service at the time separation action is initiated. b. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. Paragraph 3-9, in effect at the time of the applicant's separation, provided that a separation would be described as entry level with uncharacterized service if processing was initiated while a Soldier was in an entry-level status, except when: (1) A discharge under other than honorable conditions was authorized, due to the reason for separation and was warranted by the circumstances of the case; or (2) The Secretary of the Army, on a case-by-case basis, determined a characterization of service as honorable was clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. This characterization was authorized when the Soldier was separated by reason of selected changes in service obligation, for convenience of the government, and under Secretarial plenary authority. d. Paragraph 5-17, states commanders who are special court-martial convening authorities may approve separation under this paragraph based on other 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, which is sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired. e. The character of service for Soldiers separated under this provision would normally be honorable but would be uncharacterized if the Soldier was in an entry-level status. An uncharacterized discharge is neither favorable nor unfavorable; in the case of Soldiers issued this characterization of service, an insufficient amount of time would have passed to evaluate the Soldier's conduct and performance. 10. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230001664 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1