1. Applicant’s Name: a. Application Date: 19 May 2020 b. Date Received: 26 May 2020 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant’s Requests and Issues: The current characterization of service for the period under review is uncharacterized. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the applicant would like the same status that is reflected on the Veteran Affairs (VA) rating decision declaring the applicant as an honorably discharged veteran. The applicant was given an existing prior to service discharge, however, the applicant’s injuries occurred during service as documented in the attached VA letters. The applicant, through a Virginia Congressional representative, states the applicant has attempted to utilize specific unemployment benefits from the Virginia Employment Commission after being furloughed due to the COVID-19 pandemic, but without an honorable discharge specified on the DD Form 214, the applicant cannot take advantage of the benefits. Additionally, the applicant is attending Liberty University which has programs for students who have received an honorable discharge, however, the applicant is also not able to utilize these programs. b. Board Type and Decision: In a records review conducted on 12 May 2023, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 9 of this document for more detail regarding the Board’s decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Failed Medical/Physical/Procurement Standards / AR 635-200, Paragraph 5-11 / JFW / RE-3 / Uncharacterized b. Date of Discharge: 14 December 2018 c. Separation Facts: (1) Date Entrance Physical Standards Board (EPSBD) convened: 29 November 2018 (2) EPSBD Findings: The findings of the evaluating physicians indicate 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 existed prior to service. The applicant was diagnosed with: Bilateral Femoral Acetabular Impingement (M25.552) (3) Date Applicant Reviewed and Concurred with the Findings, and Requested Discharge without Delay: 4 December 2018 (4) Separation Decision Date / Characterization: 4 December 2018 / Uncharacterized 4. SERVICE DETAILS: a. Date / Period of Enlistment: 14 August 2018 / 4 years b. Age at Enlistment / Education / GT Score: 18 / High School Graduate / 124 c. Highest Grade Achieved / MOS / Total Service: E-4 / None / 4 months, 1 day d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: None g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Entrance Physical Standards Board (EPSBD) Proceedings, dated 29 November 2018, reflect the applicant was diagnosed with: Bilateral Femoral Acetabular Impingement (M25.552). While at reception the applicant complained of left hip pain on 22 October 2018. The applicant was given anti-inflammatories, profiled, and returned to the unit. Left hip x-rays and left hip magnetic resonance imaging (MRI) was read as normal. On 13 November 2018, Dr. G__’s x-ray review showed evidence of a positive crossover sign (FAI) with evidence of acetabular retroversion and a positive ischial spine sign. The applicant did not tell the recruiter because the medical condition was unknown. Condition existed before service. If the service member’s left hip condition had been detected at the time of enlistment, it would have prevented enlistment in the military per Army Regulation (AR) 40-501, Chapter 2-27. Developmental Counseling Form, dated 9 October 2018, reflects the applicant was counseled for missing training due to profile restrictions. Developmental Counseling Form, dated 4 December 2018, reflects the applicant was counseled for the initiation of a flag due to initiation to separate under chapter 11, AR 635-200. Company commander’s memorandum for record, dated 4 December 2018, reflects the commander’s concurrence with the Troop Medical Clinic’s recommendation to separate the applicant under paragraph 5-11, AR 635-200. Developmental Counseling Form, dated 4 December 2018, reflects the applicant was counseled for the intent to separate under paragraph 5-11, AR 635-200. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: VA disability rating decision, dated 26 February 2020, reflects the applicant was rated 20 percent disability for degenerative arthritis of the lumbar spine, 10 percent for synovitis of left hip, 0 percent for scar left hip, and 0 percent for radiculopathy of the left lower extremity sciatic nerve. VA Summary of Benefits, dated 11 March 2020, reflects the applicant has a combined service-connected disability rating of 40 percent. (2) AMHRR Listed: EPSBD findings as described in previous paragraph 3c. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; DD Form 214; VA Rating Decision; VA Summary of Benefits; Congressional Release Form. 6. POST SERVICE ACCOMPLISHMENTS: Attending Liberty University. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities’ last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember’s date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a, states an Honorable discharge is a separation with honor and 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. (3) Paragraph 3-9, states a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in entry-level status (ELS). (4) Chapter 5, provides for the basic separation of enlisted personnel for the convenience of the government. (5) Paragraph 5-1, states that a Soldier being separated under this paragraph will be awarded a characterization of service of honorable, general (under honorable conditions), or an uncharacterized description of service if in ELS. (6) Paragraph 5-10 (previously paragraph 5-11), specifically provides that 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 training or initial entry training will be separated. A medical proceeding, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within six months of the Soldier’s initial entrance on active duty, that the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at that time, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of AR 40-501, Chapter 3. (7) Glossary prescribes ELS for RA Soldiers is the first 180 days of continuous AD or the first 180 days of continuous AD following a break of more than 92 days of active military service. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “JFW” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 5-11, Failed Medical/ Physical/ Procurement Standards. f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers’ Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant’s Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The proceedings of the EPSBD revealed the applicant had a medical condition, which was disqualifying for enlistment and existed prior to entry on active duty. These findings were approved by competent medical authority and the applicant agreed with the findings and proposed action for administrative separation from the Army. The applicant’s AMHRR includes partial facts and circumstances concerning the events which led to the discharge from the Army. The applicant’s AMHRR does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s electronic signature. The applicant’s DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 5, paragraph 5-11, by reason of Failed Medical/Physical/Procurement Standards, with a characterization of service of uncharacterized. The applicant contends, in effect, the VA has determined the applicant’s service was honorable. The applicant provided a VA summary of benefits letter, dated 11 March 2020, which reflects the VA determined the period of service from 14 August 2018 to 14 December 2018, as honorable. The criteria used by the VA in determining whether a former servicemember is eligible for benefits are different than used by the Army when determining a member’s discharge. The applicant contends, in effect, an upgrade would allow unemployment benefits from the Virginia Employment Commission. Eligibility for unemployment benefits from the Virginia Employment Commission does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The applicant contends, in effect, an upgrade would allow for student programs while attending Liberty University. Liberty University student programs does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The applicant was given an existing prior to service discharge, however, the applicant’s injuries occurred during service as documented in the attached VA letters. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. An award of a VA rating does not establish an error or injustice on the part of the Army. The characterization of service for Soldiers separated under paragraph 5-11, AR 635-200 will normally be honorable. However, for Soldiers in ELS, it will be uncharacterized. AR 635-200 states that a Soldier is in ELS if the Soldier has not completed more than 180 days of creditable continuous active duty prior to the initiation of separation action. The applicant’s contentions for an upgrade were carefully considered. However, the applicant’s service was uncharacterized because of being in an ELS. A Soldier is in ELS for the first 180 days of continuous active duty. The purpose of the ELS is to provide the Soldier a probationary period. AR 635-200 provides, except in cases of serious misconduct that a Soldier’s service will be uncharacterized when the separation is initiated while the Soldier is in ELS. The AMHRR reflects the applicant had approximately 4 months and 1 day of active-duty service at the time of the discharge. The applicant was discharged on 14 December 2018. Further, an honorable discharge may be given only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty. There are no unusual circumstances present in the applicant’s record and the service did not warrant an honorable discharge. A general (under honorable conditions) discharge is not authorized under ELS conditions. The uncharacterized description of service accurately reflects the applicant’s overall record of service. An uncharacterized discharge is neither positive nor negative and it is not meant to be a negative reflection of a Soldier’s military service. It merely means that the Soldier has not been in the Army long enough for the character of service to be rated as honorable or otherwise. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? No. The Board’s Medical Advisor reviewed DoD and VA medical records and found no mitigating BH diagnoses on the applicant. The applicant provided no documents or testimony of a condition or experience, that, when applying liberal consideration, could have excused or mitigated a discharge. (2) Did the condition exist or experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contention(s): (1) The applicant seeks relief contending, in effect, the applicant would like the same status that is reflected on the Veteran Affairs (VA) rating decision declaring the applicant as an honorably discharged veteran. The applicant was given an existing prior to service discharge, however, the applicant’s injuries occurred during service as documented in the attached VA letters. The ADRB is not bound by the U.S. Department of Veterans Affairs (VA) decisions. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant’s time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member’s discharge characterization. In this case, the Board considered this contention and determined that the current discharge is appropriate as the applicant Failed Medical Procurement standards while in ELS. (2) The applicant, through a Virginia Congressional representative, states the applicant has attempted to utilize specific unemployment benefits from the Virginia Employment Commission after being furloughed due to the COVID-19 pandemic, but without an honorable discharge specified on the DD Form 214, the applicant cannot take advantage of the benefits. Additionally, the applicant is attending Liberty University which has programs for students who have received an honorable discharge, however, the applicant is also not able to utilize these programs. The Board considered this contention but does not grant relief to gain employment or enhance employment opportunities. Further, eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. c. The Board determined that the discharge is, at this time, proper and equitable, considering the current evidence of record. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant’s contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant’s characterization of service because there is no evidence that the applicant had any behavioral health conditions that existed during service that would mitigate the discharge, and there is insufficient evidence of any arbitrary or capricious action taken by Command resulting in any inequity or impropriety. Since the applicant was discharged for failing medical procurement standards due to Bilateral Femoral Acetabular Impingement (M25.552) existing prior to military service, the current Uncharacterized characterization of service is proper and equitable. The Board determined the applicant’s service was not long enough to be properly assessed. A general discharge (GD) under honorable conditions is not authorized under ELS conditions and an honorable discharge (HD) is rarely ever granted. An HD may be given only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty. The uncharacterized description of service accurately reflects the applicant’s overall record of service. An uncharacterized discharge is neither positive nor negative and it is not meant to be a negative reflection of a Soldier’s military service. It means the Soldier has not been in the Army long enough for a character of service to be rated as honorable or otherwise. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, and the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: No b. Change Characterization to: No Change c. Change Reason / SPD Code to: No Change d. Change RE Code to: No Change e. Change Authority to: No Change Authenticating Official: Legend: AWOL – Absent Without Leave AMHRR – Army Military Human Resource Record BCD – Bad Conduct Discharge BH – Behavioral Health CG – Company Grade Article 15 CID – Criminal Investigation Division ELS – Entry Level Status FG – Field Grade Article 15 GD – General Discharge HS – High School HD – Honorable Discharge IADT – Initial Active Duty Training MP – Military Police MST – Military Sexual Trauma N/A – Not applicable NCO – Noncommissioned Officer NIF – Not in File NOS – Not Otherwise Specified OAD – Ordered to Active Duty OBH (I) – Other Behavioral Health (Issues) OMPF – Official Military Personnel File PTSD – Post-Traumatic Stress Disorder RE – Re-entry SCM – Summary Court Martial SPCM – Special Court Martial SPD – Separation Program Designator TBI – Traumatic Brain Injury UNC – Uncharacterized Discharge UOTHC – Under Other Than Honorable Conditions VA – Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20200007438 1