IN THE CASE OF: BOARD DATE: 4 October 2023 DOCKET NUMBER: AR20230002488 APPLICANT REQUESTS: reconsideration of her previous request for upgrade of her uncharacterized discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States) * DD Form 214 (Certificate of Release or Discharge from Active Duty), 6 November 1997 * self-authored statement, 8 November 2022 * Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim) from Mr. , 18 December 1997 * VA rating decision letters, 3 March 1998, 22 May 1999 and 20 June 2002 * VA service-connected disability compensation letter, 20 October 2022 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 Dockets Number * AR20180010312 on 19 November 2020. * AR20060007693 on 12 December 2006 2. The applicant provides new evidence not previously considered by the Board. 3. The applicant states: a. As a service-connected disabled veteran, she believes she qualifies for a Certificate of Eligibility (COE) to purchase a home. Shortly after her discharge, she filed a claim for VA benefits and has tried to apply for a home loan guarantee multiple times. However, she has always been denied due to her uncharacterized characterization of service. Her DD Form 214 states she failed to meet procurement medical fitness standards, which she understands. However, the Army never afforded her the opportunity of a medical review board. b. According to the VA website, if you do not meet the minimum service requirements, you may still be eligible for a COE if you were discharged due to: * hardship * the convenience of the government * reduction in force * certain medical conditions; or, * a service-connected disability c. She was released from active duty shortly after entering basic training due to a bilateral knee condition that interfered with the performance of my duties. Her VA rating decision, dated 20 February 1998, states, “The enlistment examination conducted in July 1997 was entirely negative for any history of knee problems, and no abnormalities of the knees were noted. The decision further stated on October 3, 1997, the veteran was first seen with complaints of knee pain. On October 6, 1997 the veteran reported she had bilateral knee pain for the last 4 days. She denied a history of these problems prior to service”. The decision also stated, “The veteran reported the onset of knee pain in her third week of basic training while running. She also indicated that since discharge she has pain in her knees three-fourths of the day and activity makes the pain worse. She indicated that she actually lost her job at K-Mart because of her knee pain”. d. Service connection for her right and left knee condition was granted with an evaluation of 10 percent for each knee, effective 7 November 1997. She is currently receiving 100 percent service-connected disability compensation. Without a shadow of a doubt, she knows she would've remained in the Army if it were not for her knee condition. In 2004 and 2005, she had to have reconstructive surgery for both knees. The injuries she suffered in the military have impacted her life significantly; not only did it affect her military career but also her ability to work. She asked the Board to reconsider changing her discharge character from uncharacterized to honorable conditions. This change would allow her to stop having ongoing denials of military benefits that are a privilege to have. Raising her right hand and swearing to honor and protect this country was a great privilege. If she had the ability, she would sign up for military service again. She listed post-traumatic stress disorder (PTSD) an issue(s)/condition(s) related to her request for correction to her narrative reason for discharge. 4. The applicant enlisted in the Wisconsin Army National Guard (WIARNG) on 22 August 1997. 5. The complete facts and circumstances surrounding her discharge are not available for review. However, her record contains a dully constituted DD Form 214 that shows: a. On 24 September 1997, she entered active duty for training (ADT). She did not complete training and was never awarded a military occupational specialty. b. On 6 November 1997, she was released from ADT and discharged under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), paragraph 5-11, failure to meet procurement medical fitness standards, with a separation code of “JFW” and a reentry code of “3.” c. She completed 1 month, and 13 days of net active service during the covered period; no personal awards were listed. 6. The applicant provides: a. VA Form 21-4138, statement of support of claim from Mr. , a veteran service officer, dated 14 December 1997, which states he talked to the applicant enough times to be completely convinced that she had no clue she had a knee problem prior to the problems she experienced during basic training. There was no indication of any problems noted on any physical examinations prior to that time. It appeared to be anything but acute and transitory. She was terrified and in so much pain that she could barely hold a part-time job and had no medical coverage to receive treatment for her condition. In his professional opinion, as a rehabilitation counselor with a master's degree and 20 years of experience, she needed expedited service if qualified for service connection to prevent or alleviate severe, chronic, and degenerative changes to both her knees. b. Three VA disability decision ratings showing her service-connected disability rating from the VA went from 30 to 60 percent from 3 March 1998 to 20 June 2002. c. A VA service-connected disability compensation letter, dated 20 October 2022, showing the applicant's service-connected disability compensation was raised to 100 percent disability effective 1 December 2021. 7. The ABCMR considered the applicant's request for correction of her DD form 214 to change her narrative reason for discharge to service-connected disability on 12 December 2006. After reviewing the application and all supporting documents, the Board determined relief was not warranted. The Board found the evidence presented did not demonstrate the existence of a probable error or injustice as a basis for correction of the applicant’s records. 8. On 20 August 2007, she wrote an appeal letter to the ABCMR requesting they reconsider their decision to deny her 12 December 2006 request to change her narrative reason for discharge from to uncharacterized to a medical discharge due to in- service bi-lateral patella damage to both her right and left knee. After reviewing the request for reconsideration, examining the original ABCMR decision, and all supporting documents, the ABCMR determined she did not provide new evidence and/or argument with her request. As a result, the ABCMR returned her request for reconsideration without action. 9. The ABCMR considered the applicant's request for correction of her DD form 214 to upgrade her uncharacterized discharge on 19 November 2020. After reviewing the application and all supporting documents, the Board determined relief was not warranted. The Board found the evidence presented did not demonstrate the existence of a probable error or injustice as a basis for correction of the applicant’s records. 10. The applicant’s entrance physical standards board (EPSB) proceedings are not available for review. Her discharge under paragraph 5-11 of AR 635-200 would seem to confirm the ESPSD determined she met the 5-11 requirements for discharge. 11. Regulatory guidance provides Soldiers are considered to be in an entry-level status when they are within their first 180 days of active-duty service. 12. The applicant provided argument and/or evidence the Board should consider, along with the applicant's overall record, in accordance with the published equity, injustice, or clemency determination guidance. 13. 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 again requesting an upgrade of her 6 November 1997 uncharacterized discharge. On her DD 293, the applicant notes the PTSD is an issue related to this request. c. The Record of Proceedings outlines the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows the former Army National Guard Soldier entered active duty for initial entry training on 24 September 1997 and received an uncharacterized discharged on 6 November 1997 under the separation authority provided by paragraph 15-11 of AR 635-200, Personnel Separations – Enlisted Personnel (30 August 1995), “Separation of personnel who did not meet procurement medical fitness standards.” d. This request is the same as her prior request which was denied by the ABCMR on 12 December 2006 (AR20060007693). From an 18 September 2007 ABCMR memorandum denying a reevaluation of her 2006 denial: The staff of the ABCMR noted your request that your character of service (uncharacterized) be changed to a medical discharge. This request, in effect, is a request for a narrative reason change. Please be advised that your character of service was uncharacterized and your narrative reason for separation was failure to meet procurement medical fitness standards. The staff also noted your original request for a narrative reason change was considered and denied by the ABCMR on December 12, 2006. e. The request for an upgrade was again denied by the ABCMR on 19 November 2020 (AR20180010312). 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. f. There remain no encounters in AHTLA or documents in iPERMS. g. The new evidence in this case consists of a VA Benefits letter showing the applicant’s percent disability was increased to 100% effective 1 December 2021. Review of her records in JLV show the increase was the result of an increase in ratings for her pes planus (flat feet) and depression. However, this does not affect the facts of the case. h. The applicant was referred to an Entrance Physical Standards Board as required by 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 or ADT for initial entry training, may be separated. Such conditions must be discovered during the first 6 months of AD. Such findings will result in an entrance physical standards board. This board, which must be convened within the Soldier’s first 6 months of AD, takes the place of the notification procedure (para 2–2) required for separation under this chapter.” i. Entry physical standards board (EPSBD) 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 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. j. The applicant’s EPSBD’s proceedings are not available for review. Her discharge under paragraph 5-11 of AR 635-200 would seem to confirm the ESPSD determined she met the 5-11 requirements for discharge. k. Review of her records in JLV shows she has been awarded multiple VA service- connected disability ratings, including one for depressin. However, the DES only compensates an individual for service incurred medical condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. l. It is the opinion of the Agency Medical Advisor that an upgrade of her discharge and a referral of her case to the DES both 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 law, policy and regulation. 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. Upon review of the applicant’s petition, available military records and the medical review the Board concurred with the advising official finding that referral of her case to the Disability Evaluation System (DES) and upgrade of her discharge is without merit. Evidence shows the applicant did not receive a MOS and was credited with 1 month, and 13 days of net active service during the covered period. 2. 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, the Board found insufficient evidence for granting the applicant's request for upgrade of her uncharacterized character of service or referral of her case to the DES. Based on this, the Board agreed that a reversal on the previous Board determinations is not warranted and denied relief. 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 AR20180010312 on 19 November 2020 and AR20060007693 on 12 December 2006. 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. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. a. Paragraph 3-4(2) Entry-Level status. Service will be uncharacterized, and so indicated in block 24 of DD Form 214, except as provided in paragraph 3–9a. b. Paragraph 3-7 states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier'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 3-9a Entry-level status separation. A separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in entry-level status, except when— (1) Characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case. (2) HQDA (AHRC–EPR–F), on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. This characterization is authorized when the Soldier is separated by reason of selected changes in service obligation, convenience of the Government, and Secretarial plenary authority. (3) The Soldier has less than 181 days of continuous active military service, has completed Initial Entry Training, has been awarded an MOS, and has reported for duty at a follow-on unit of assignment. d. 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 may be separated. Such conditions must be discovered during the first 6 months of active duty. Such findings will result in an EPSBD. This board, which must be convened within the Soldier's first 6 months of active duty, takes the place of the notification procedure required for separation under this chapter. (1) Medical proceedings, regardless of the date completed, must establish that a medical condition, which was identified by an appropriate military medical authority within 6 months of the Soldier's initial entry on active duty would have permanently or temporarily disqualified the Soldier for entry into military service had it been detected at that time or the medical condition does not disqualify the Soldier for retention in military service per Army Regulation 40-501 (Medical Services - Standards of Medical Fitness), chapter 3. (2) A Soldier who is found not to have been qualified under procurement medical fitness standards at the time of enlistment after entry on active duty may request to be retained on active duty if, after considering the proceedings of an EPSBD, the separation authority determines the Soldier's disqualifying condition will not prevent the Soldier from performing satisfactorily throughout his/her period of enlistment in the MOS for which he/she is being trained or in another MOS based on the Soldier's medical condition and the Soldier, after being counseled and given the opportunity to obtain legal advice, signs a statement requesting to complete the period of service for which enlisted. Soldiers not retained will be processed for separation. e. Section II (Terms): (1) Character of service for administrative separation - A determination reflecting a Soldier’s military behavior and performance of duty during a specific period of service. The three characterizations are honorable, general (under honorable conditions), and under other than honorable conditions. The service of Soldiers in entry-level status is normally described as uncharacterized. (2) Entry-level status - For ARNGUS and USAR Soldiers, entry-level status begins upon enlistment in the ARNG or USAR. For Soldiers ordered to IADT for one continuous period, It terminates 180 days after beginning training. For Soldiers ordered to IADT for the split or alternate training option, it terminates 90 days after beginning Phase II advanced individual training (AIT). (Soldiers completing Phase I BT or basic combat training (BCT) remain in entry-level status until 90 days after beginning Phase II.) 2. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 3. Section 1556 of Title 10, United States 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. 4. 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. 5. 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. 6. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230002488 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1