IN THE CASE OF:	  

		BOARD DATE:	  15 December 2009

		DOCKET NUMBER:  AR20090002586 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his characterization of service be changed from uncharacterized to honorable; that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show his organization as Company E; that his "contract rescission" [discharge] be declared null and void; that he be medically retired as a commissioned officer at a grade commensurate with his age, education, and professional certifications and licensure; that he be given an active secret security clearance; that he be given full student loan repayment; and that he be given all pay, benefits, and allowances due him for the term of his enlistment contract.

2.  In the alternative, the applicant requests, in effect, restitution in the form of compensation for personal and real property either donated to charity or sold in anticipation of his Army career; lost civilian wages, benefits, and bonuses; moving and storage expenses; transportation costs incurred after being discharged; compensation for reputational damage suffered; all costs of bringing suit against the Army including reasonable attorney's fee; and any other actual damages, statutory damages, compensatory damages, punitive damages, and other such relief as provided by law or in equity.

3.  The applicant states, in effect, that he will agree to forego restitution for damage to his reputation if the Army will publically thank him for serving his country; take positive, public means to restore the damage to his reputation including, but not limited to, a radio interview and communications with numerous professional, civic, social, alumni, and recreational groups and associations.

4.  The applicant states that the Army blamed his injury on an unrelated condition which the Army claimed existed prior to service (EPTS).  He had disclosed this condition when he enlisted.  He was placed under duress while in training which denied him the opportunity to seek legal military counsel to challenge his discharge.  He adds his last unit was Company E, not Company F as his DD Form 214 indicates.

5.  In a complaint filed in the U.S. Court of Federal Claims, the applicant details his recollection of the events which transpired at the Military Entrance Processing Station (MEPS).  That history alleges that recruiters instructed him to say he had no medical problems and told him that if questioned at a later date, he should simply say that he forgot about the condition.  Despite that counseling, the applicant fully disclosed his medical history because he believed that was the proper thing to do.  The applicant then details the remainder of the processes he went through at the MEPS.

6.  The applicant continues that in anticipation of a military career, he sold his house and truck, donated considerable amounts of his real and personal property, and turned down a very lucrative job offer.

7.  The applicant then details the circumstances which led to his discharge.  Those circumstances started with him being issued a pillow which was completely worn out and his purchasing footwear which was incorrectly sized.  Due to the improperly-sized shoes along with carrying a heavy duffle bag and sleeping on a completely flat pillow, he began suffering from shoulder blade pain. 
When he sought medical treatment for his shoulder blade pain, he was misdiagnosed with low back pain due to his previous medical history.  After 
x-rays were taken, a recommendation was made that he be discharged based on a misdiagnosed EPTS medical condition.

8.  While awaiting discharge, he was assigned to Company E, 30th Adjutant General Battalion where he was placed under severe psychological and emotional duress and his physical profile limitations were constantly violated.  During this time, he contacted his sister by telephone and asked to have his mother contact the Judge Advocate General's (JAG) office at Fort Benning, GA, and ask for a JAG officer to contact him.  While the applicant's mother sent him a response via overnight delivery, since he was not permitted to receive any phone calls, he did not receive the letter until after he signed the paperwork (under 
undue influence) agreeing to his discharge.  The JAG officer's response was to not sign any documentation until he talked to Trial Defense Services (TDS).  The applicant adds that he was subsequently denied military legal counsel to pursue a remedy as permitted under Army regulations.

9.  The applicant outlines the various avenues he has pursued to rectify the wrongs done to him and the outcomes of those efforts.

10.  The applicant provides documents which are listed in a table of contents.  One of those documents is a letter to him from his mother in which his mother stated, "I called JAG earlier in the week because of your phone call to Suzan.  They said they couldn't call you.  The only thing you can do is when they call you in to sign papers they are supposed to ask if you want legal counsel and you just say yes you want to talk to TDS and your sergeant will take you over and drop you off."  This letter is dated 24 August 2008 and delivered to the Army on 27 August 2008.  Two additional letters are included.  The first is from the applicant's chiropractor dated 3 September 2009 wherein the chiropractor states that he had treated the applicant with 11 adjustments to his upper neck on the atlas vertebrae from November 2006 to August 2008.  The chiropractor states that the applicant was a healthy, athletically fit 37-year old capable to perform military service without limitation when he enlisted in the Army.  The second is a letter dated 25 November 2008 to the Inspector General of the Army.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 15 July 2008.  He enlisted in the Regular Army (RA) on 12 August 2008 for the Officer Candidate School (OCS) enlistment option.  At that time the applicant stated that he had graduated from the Florida Institute of Technology in 1989, the University of Georgia in 1996, the Embry-Riddle Aeronautical University in 2003, and had been enrolled in Concord Law School since January 2006.  On 30 May 2008 during his enlistment processing, the applicant was given a physical examination, the reports of which were recorded on a DD Form 2807-1 (Report of Medical History).  In that examination the applicant stated he had been "Advised to have back surgery in 2000, declined.  Four epidurals in 2000 for back."  His response was later explained with the entry "Lower back pain 2000; treated by chiropractor – no complications."  The form does not show the applicant revealed any prior diagnosis for scoliosis or disc problems.  On the same day, a DD Form 2808 (Report of Medical Examination) was completed which shows that the applicant was found medically qualified for enlistment with no physical profile limitations.

2.  On 19 August 2008, the applicant completed a DD Form 2697 (Report of Medical Assessment).  In item 12 of that form he entered "Have been see[n by a] chiropractor for several years."  In item 15 he entered "Back pain may be an issue if equipment cannot be adjusted properly."

3.  On 20 August 2008, the applicant was considered by an entrance physical standards board (EPSBD).  In the EPSBD proceedings recorded on a DD Form 4707 (EPSBD Proceedings) it was stated that while the applicant was in his second week of training he reported "complaints of lower back pain.  Positive history of pain in lower back.  Soldier states back pain worse since arrival at Fort Benning secondary to carrying duffle bag."  In these proceedings it was further stated that x-ray imaging showed "dextro curvature of the lumbar (spine) with mild disc space narrowing at L4-5 and L5-S1.  End plate degenerative changes [with] mild disc space narrowing T8-9 and T9-10."  These findings were approved by the medical approval authority on 25 August 2008.  The EPSBD diagnosis was lower back pain and that board recommended that the applicant be separated from the military service.  On 27 August 2008, the applicant stated, "I have been informed of the medical findings.  Additionally, I understand that legal advice of an attorney employed by the Army is available to me or that I may consult civilian counsel at my own expense.  I also understand that I may request to be discharged from the U.S. Army without delay or to request retention on active duty.  If retained, I (may) be involuntarily reclassified into another military occupational specialty based upon my medical condition."  He was then given the following four choices:

	a.  "I concur with these proceedings and request to be discharged from the U.S. Army without delay."

	b.  "I concur with these proceedings and request that I be retained on active duty."

	c.  "I disagree with these proceedings because my condition did not exist prior to service (specified medical evidence is attached) and request my case be returned to the medical approving authority for reconsideration."

	d.  "I disagree with these proceedings because my condition was not disqualifying on entry and was aggravated by service (specific medical evidence is attached) and request my case be returned to the medical approving authority for reconsideration."

4.  The applicant elected the choice "I concur with these proceedings and request to be discharged from the U.S. Army without delay."

5.  Accordingly, on 11 September 2008, the applicant was discharged.  His service was uncharacterized.  The narrative reason for separation was "failed medical/physical/procurement standards."  The authority for his separation was Army Regulation 635-200 (Personnel Separations, Active Duty Enlisted Administrative Separations), paragraph 5-11.  Item 8a (Last duty assignment and major command) shows "Company F RHU [Retraining Hold Unit] TC [Training and Doctrine Command].

6.  The applicant's Enlisted Record Brief, a form which contains a synopsis of a Soldier's military information, shows that the applicant was assigned to Company A, 30th Adjutant General Battalion on 12 August 2008, and to Company F, RHU, on 20 August 2008.

7.  On 25 November 2008 after the applicant's discharge, he wrote the Department of the Army Inspector General (DAIG).  In that letter he stated, in pertinent part, that "While we were at Echo [Company E] , we were entitled to consult with a JAG lawyer before we signed any paperwork about our discharge. 
However, requesting to speak to a JAG lawyer is just another way to incur the wrath of Echo leadership and possibly extend the amount of time we have to wait in Echo to be discharged.  So I never requested a JAG lawyer and signed all my paperwork under duress."

8.  Army Regulation 635-200, paragraph 5-11 (Separation of personnel who did not meet procurement medical fitness standards), states 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 (AD) or active duty for training (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 required for separation under this chapter.  Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by an appropriate military medical authority within 6 months of the Soldier's initial entrance on AD for RA or during ADT for initial entry training for Army National Guard and USAR that would have permanently or temporarily disqualified the Soldier for entry into the military service or entry on AD or ADT for initial entry training had it been detected at that time and does not disqualify the Soldier for retention in the military service per Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

9.  Army Regulation 635-200, paragraph 3-9, specifies that Soldiers who are within the first 180 days of their enlistments when separation processing is started will normally receive an uncharacterized entry-level separation.  The only authorized exceptions are in those cases where an under other than honorable conditions discharge is authorized and or warranted or when the Secretary of the Army determines on a case-by-case basis that an honorable discharge is warranted by unusual circumstances involving the individual's personal conduct and performance of duty.  However, such honorable discharges may be applied only in cases involving changes in service obligation, convenience of the government, and Secretarial plenary authority.

10.  Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEBD).  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.  Soldiers who are not able to perform their duties due to a service-connected condition will then be discharged with severance pay (if authorized) or placed on the Retired List for physical unfitness.

11.  Army Regulation 601-210 (Personnel Procurement Active and Reserve Components Enlistment Program), paragraph 9-9, states that the government will repay a designated portion of any loan incurred that was made, insured, or guaranteed under part B of the Higher Education Act of 1965 (Guaranteed Student Loan), Part D (William D. Ford Direct Loan Program), or any loan under part E of such act (Perkins Loan [formerly the National Direct Student Loan]) before enlistment into the RA.  Provided the applicant meets and maintains the prescribed prerequisites and has qualifying loans in good standing, enlistment for the Loan Repayment Program (LRP) ensures that the portion or amount of loan that may be repaid is $1500 or one-third of the amount of the qualifying loans, whichever is greater for every year of service.  The Army does not pay interest or fees or reimburse Soldiers for payments already made on loans.  Repayment is made only after each successful year of active duty performed commencing on the date of RA enlistment.

12.  Army Regulation 40-501, paragraph 2-29, states the following conditions are disqualifying for enlistment/appointment/procurement:

	a.  Current or history of ankylosing spondylitis or other inflammatory spondylopathies (720) is disqualifying.

	b.  Current or history of any condition, including, but not limited to the spine or sacroiliac joints, with or without objective signs that:

		(1)  prevents the individual from successfully following a physically active vocation in civilian life (724) or that is associated with local or referred pain to the extremities, muscular spasm, postural deformities, or limitation of motion is disqualifying;

		(2)  requires external support is disqualifying;

		(3)  requires limitation of physical activity or frequent treatment is disqualifying;

	c.  Current deviation or curvature of spine (737) from normal alignment, structure, or function is disqualifying if:

		(1)  it prevents the individual from following a physically active vocation in civilian life;

		(2)  it interferes with the proper wearing of a uniform or military equipment;

		(3)  it is symptomatic;

		(4)  there is lumbar scoliosis greater than 20 degrees, thoracic scoliosis greater than 30 degrees, or kyphosis and lordosis greater than 55 degrees when measured by the Cobb method.

13.  Army Regulation 40-400 (Medical Services Patient Administration), paragraph 7-12 (Expeditious discharge) states that the member's commander will counsel the Soldier as to his/her right including the opportunity to consult with an attorney, either military or civilian, if desired, prior to making a decision.  (Consulting with a civilian attorney will be at no expense to the government.)  The commander will ensure that the Soldier understands the options available.  The member is authorized up to 3 working days to decide on his/her election.  Extension of time beyond 3 working days may be granted by the unit commander for reasonable delays (for example, to consult with legal counsel).  The member will indicate his/her selection by initialing the appropriate box in item 21.  If the member requests retention on active duty, the member will state his/her reasons for desiring retention.  This statement will be attached to the DA Form 4707.  If the member disagrees with the medical findings and requests reconsideration, the medical evidence will include copies of medical records/statements from physicians.  Medical disagreements will be referred to the medical approving authority for resolution while retention disagreements will be referred to the unit commander for resolution.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his shoulder hurt because he was issued a flat pillow, he bought shoes that did not fit, and he was carrying a heavy duffle bag.  He contends that his sore shoulder was misdiagnosed as lower back problems which resulted in his discharge due to the misconception that he was suffering from EPTS back pain.

2.  However, the evidence of record shows that the applicant stated during his enlistment physical examination that he had been advised to have back surgery and declined.  He had four epidurals for his back.  He reported controlling his back pain by chiropractic treatment.  

3.  Then, in his second week of training, the applicant reported that his back pain was worse since his arrival at Fort Benning as a result of carrying a duffle bag.  X-ray imaging taken in conjunction with his EPSBD showed dextro curvature of the lumbar spine with mild disc space narrowing at L4-5 and L5-S1 as well as end plate degenerative changes with mild disc space narrowing T8-9 and T9-10. These conditions would not have been discovered during his enlistment processing due to the limited nature of enlistment physicals.

4.  The applicant never mentioned his shoes being too tight or his pillow causing shoulder pain when he sought treatment while on active duty.  That fact, in conjunction with the physical requirements being placed on the applicant during initial entry training and the applicant's reported history of back problems (which was corroborated with x-ray imaging), supports that the applicant was properly diagnosed with EPTS back pain.  That condition would have been found to be medically disqualifying for enlistment if it had been discovered prior to his enlistment in accordance with Army Regulation 40-501, paragraph 2-29.

5.  The applicant was advised in his EPSBD proceedings that he was entitled to legal advice of an attorney employed by the Army or from civilian counsel at his own expense.  There is no evidence or indication that the applicant requested to talk to legal counsel.  However, the Army followed its regulations by providing the applicant the opportunity to request legal counsel.

6.  In addition, the applicant was given four choices on his EPSBD proceedings.  Those included requesting immediate discharge, remaining on active duty, contesting the EPTS nature of his unfitting condition, and asserting that the EPTS condition was aggravated by military service.  The fact that the applicant chose immediate discharge is prima facie evidence that he knew his EPTS condition was causing him problems completing his training.  There is no evidence or indication that the applicant made his decision not to seek counsel and to be discharged under duress.  To the contrary, he himself states in his letter to the DAIG that he did not want to incur the wrath of the drill sergeants by asking to consult with counsel.  If he was not aware that he could request counsel, he would not know that he would incur the wrath of the drill sergeants.  The applicant's contention that he would be thought less of by the drill sergeants if he asked to speak to a lawyer is his perception and certainly could not be construed as coercion.  In addition, whether or not he received the letter from his mother prior to signing the documents consenting to his discharge does not alter the fact that he was aware of his right to consult with counsel.  That he chose not to consult with counsel was his personal choice, not an omission by the Army or an attempt to deprive him of due process as he alleges.

7.  It is not uncommon for a medical condition to be found acceptable upon enlistment, yet later form the basis for an EPTS medical discharge.  This is because a medical condition may not cause a Soldier problems when the individual is a civilian living a sedentary lifestyle.  However, after enlistment, a Soldier must perform the demanding physical activities required in military training.  Given those stressors, the formerly acceptable medical condition becomes problematic.

8.  Given the applicant's age, obvious intelligence (based upon his selection for OCS), and multiple college degrees, it would be reasonable to presume that he would speak up if the events transpiring were not being accurately recorded in official documentation, and if he had been misdiagnosed that he would avail himself of the military counsel offered and elect an option which would have prevented his discharge.  There is no evidence that the applicant contested any entry made in his records when they were recorded or took any action to refute an inappropriate diagnosis or contest his discharge.

9.  While it is certainly unfortunate that the applicant sold his house and truck and gave away his possessions, these were his decisions to make.  While the applicant's untimely discharge turned these decisions into financial losses, this does not form the basis for granting the applicant's request.

10.  In view of the foregoing, it is concluded that the applicant was properly discharged due to his being medically disqualified under enlistment (procurement) standards.  Since the applicant was within the first 180 days of his enlistment when he was discharged, his service was properly uncharacterized.

11.  As for the applicant's unit shown on his DD Form 214, his Enlisted Record Brief shows he was assigned to Company F, RHU, on 20 August 2008.  As such, the unit listed on his DD Form 214 is correct and there is no reason to change it.

12.  As for the applicant's request to be medically retired as a commissioned officer at a grade commensurate with his age, education, and professional certifications and licensure, the applicant makes contradictory contentions, saying that he was misdiagnosed and was not medically disqualified, and then asking for a medical retirement.  In this regard, the record shows that he was never determined medically disqualified for retention (he was determined medically disqualified under enlistment, or procurement, standards).  Without a finding of medical disqualification for retention, he was not eligible to be considered by an MEBD.  Without an MEBD, he could not be considered by a PEB.  Without a PEB, he could not have been medically retired.  As such, there is no basis for granting this portion of his request.

13.  Since the applicant's request for medical retirement is not favorably considered, his request that he be given an active secret security clearance, that he be given full student loan repayment, and that he be given all pay, benefits, and allowances due him for the term of his enlistment contract is not favorably considered.  Since he had not completed a year of service, he was not eligible for an LRP payment.  Because he was properly discharged prior to completing OCS, there is no basis for commissioning him, granting him a security clearance, or giving him any pay and allowances subsequent to his discharge.

14.  The applicant's alternative request must also be considered, his request that he be given restitution in the form of compensation for personal and real property either donated to charity or sold in anticipation of his Army career; lost civilian wages, benefits, and bonuses; moving and storage expenses; transportation costs incurred after being discharged; compensation for reputational damage suffered; all costs of bringing suit against the Army including reasonable attorney's fee; and any other actual damages, statutory damages, compensatory damages, punitive damages, and other such relief as provided by law or in equity.

15.  The Board is empowered by law to correct military records.  It has no authority to give restitution for losses or damages suffered by Soldiers.  If the applicant believes that he was not given transportation or storage reimbursement in accordance with the governing regulations, he may submit a request to be given the proper payment for these expenses.  The Board also has no authority to pay attorney fees.  As such, there is no basis for granting the applicant's alternative request.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________XXX____________
                 CHAIRPERSON
      
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.
ABCMR Record of Proceedings (cont)                                         AR20090002586



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ABCMR Record of Proceedings (cont)                                         AR20090002586



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