BOARD DATE:	  19 July 2011

		DOCKET NUMBER:  AR20100029707 


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:

The applicant defers his request for reconsideration and statement to counsel.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's earlier request for correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) as follows:

* change his characterization of service from uncharacterized to honorable
* change his rank/grade from specialist (SPC)/E-4 to a rank he would have held had his contract been fully performed (presumably captain
(CPT)/O-3)
* entitlement to all back pay and allowances
* payment of his student loans under the Loan Repayment Program (LRP)
* reimbursement for the airfare the applicant incurred to travel to his parent's home as a result of being wrongfully discharged

2.  Counsel introduces the applicant and the personal, professional, and financial sacrifices he endured in order to enlist in the Army.  He then provides a background of his enlistment process, interaction with the recruiter, the events after arrival at basic combat training (BCT), chronicles the issue of the applicant's medical clearance, mistreatment during BCT, and ultimate discharge.  Counsel states:

	a.  In effect, the Army blamed his injury on a 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.

	b.  The recruiter 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.  

	c.  The applicant was issued a pillow which was completely worn out and his footwear 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 pain, he was misdiagnosed with low back pain due to his previous medical history.  

	d.  After x-rays were taken, he was recommended for discharge based on a misdiagnosed EPTS medical condition.  While awaiting discharge, he was placed under 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.  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.

	e.  An inquiry through his Member of Congress led to an Army Regulation
15-6 (Procedure for Investigating Officers and Board of Officers) investigation which in turn resulted in three drill sergeants being relieved.  Additionally, the Department of the Army Inspector General (DAIG) stated that after completing a comprehensive inquiry into the matters the applicant presented, the DAIG concluded that the allegations of maltreatment were founded.

	f.  Counsel's argument centers on the following issues:

* The Board did not address the issues of maltreatment nor did it address the allegations of duress and coercion
* The Army recruiter made a fraudulent representation about the applicant when he filled out his paperwork
* The Army made a fraudulent representation to the applicant in order to induce him to join the service
* The Army was directly responsible for the applicant's abuse while he awaited discharge and should be held accountable
* The applicant deserved restitution in the interest of equity and justice

3.  Counsel provides the previously submitted (PS) and new evidence (N) as follows:

* A DD Form 2807-2 (Medical Pre-Screen of Medical History Report) (PS)
* A DD Form 2807-1 (Report of Medical History) (PS)
* A DA Form 705 (Army Physical Fitness Test Scorecard) (PS)
* A DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings) (PS)
* A DA Form 3349 (Physical Profile) (PS)
* A DA Form 2697 (Report of Medical Assessment) (PS)
* The applicant's letters to his Members of Congress (PS)
* An affidavit from two former unit members (PS)
* A letter to the DAIG (PS)
* A DD Form 2808 (Report of Medical Examination) (PS)
* A letter from his Member of Congress (PS)
* A letter from the U.S. Army Infantry Center Deputy Chief of Staff to the applicant's Member of Congress (PS)
* A DA Form 61 (Application for Appointment) (N)
* A Headquarters, U.S. Army Infantry Center, Fort Benning, GA, redacted IG Action Request - Referral, dated 7 April 2009 (N)
* A DAIG Action Request - Referral, dated 10 December 2008 (N)
* A Modified Report of Investigative Inquiry, dated 30 June 2009 (N)
* An Electronic 1559 IG Action Request, dated 17 February 2010 (N)
* An Electronic 1559, dated 17 February 2010 (N)
* An undated Modified Report of Investigative Inquiry (N)
* A Modified Report of Investigative Inquiry, dated 7 January 2010 (N)
* A DAIG Freedom of Information Act (FOIA) request (N)
* An Electronic 1559, dated 5 August 2010 (N)
* A letter from the U.S. Army Infantry IG to the DAIG, dated 7 April 2009, (N)
* Several letters from and to DAIG

CONSIDERATION OF EVIDENCE:

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) AR20090002586 on 15 December 2009.

2.  The applicant provides through counsel various IG/DAIG reports and modified reports which were not previously reviewed by the ABCMR; therefore, they are considered new evidence and as such warrant consideration by the Board.

3.  The applicant underwent an enlistment medical examination on 30 May 2008 at the Atlanta Military Entrance Processing Station for the purpose of enlisting in the Regular Army (RA) and attending officer candidate school (OCS).  He completed a DA Form 2807-1 wherein he stated:

* He had a broken nose in 1992
* He was previously advised to have back surgery in 2000 but he declined 
* He previously had four epidurals in 2000 for his back
* He previously saw a chiropractor in Hiram, GA
* He had his wisdom teeth taken out in Atlanta, GA

4.  He did not reveal any prior diagnosis for scoliosis or disc problems.  After examination, a DD Form 2808 was completed which shows he was found medically qualified for enlistment with no physical profile limitations.

5.  On 15 July 2008, he enlisted in the U.S. Army Reserve (USAR) under the Delayed Entry Program (DEP) for a period of 8 years in the rank/grade of specialist (SPC)/E-4.  He listed his home of record (HOR) as Powder Springs, GA.

6.  His DEP-IN (Statement of Enlistment - U.S. Army Enlistment Program) shows he enlisted for the following programs or incentives:

* U.S. Army Officer/Warrant Officer Enlistment Program
* U.S. Army Loan Repayment Program (LRP)

7.  He acknowledged that he understood:

* His enlistment in the LRP ensures him, provided he meets and maintains the prescribed prerequisites, that the portion or amount of loan that may be repaid is 33 1/3 percent or $1,500.00, whichever is greater
* Repayment will be made only after each successful year of active duty that he performs commencing on the date of his enlistment in the RA

8.  He enlisted in the RA for a period of 3 years on 12 August 2008 and he was subsequently assigned to Fort Benning for completion of BCT.  He was assigned to the 30th Adjutant General Replacement Battalion.

9.  On 18 August 2008, during his second week of training, he was identified as having an EPTS condition.  His paperwork was sent to the Sand Hill Cadre Clinic on 20 August 2008.  He had complained of lower back pain and related that his back pain became worse since his arrival at Fort Benning secondary to carrying a duffle bag.

10.  On 20 August 2008, he was considered by an EPSBD.  His EPSBD proceedings recorded on a DA Form 4707 (EPSBD Proceedings) stated while he 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."  The EPSBD also states:

	a.  Objective finding:  Spine - sensory intact, pulses intact distally, normal tandem and gait; positive pain with flexion; negative SLR; positive tenderness with palpation of thoracolumbar region; DTR (deep tendon reflex) 2+ equal bilaterally; negative Waddell's; normal motor strength 5/5.

	b.  Laboratory/X-Ray Results:  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." 

	c.  Diagnosis:  lower back pain.

	d.  Disposition:  It is recommended that the Soldier be separated from the military service.

11.  These findings were approved by the medical approval authority on 25 August 2008.  

12.  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:

* I concur with these proceedings and request to be discharged from the U.S. Army without delay
* I concur with these proceedings and request I be retained on active duty
* 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
* 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

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

14.  On 27 and 29 August 2008, his immediate and intermediate commanders recommended approval of his discharge with an entry level/uncharacterized characterization of service.

15.  On 4 September 2008, the separation authority approved his discharge from the Army.  Accordingly, he was discharged on 11 September 2008.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), paragraph 5-11, with an uncharacterized characterization of service.  He completed 1 month of creditable active service.  This form also shows in:

* Item 26 (Separation Code) the entry "JFW"
* Item 28 (Narrative Reason for Separation) the entry "Failed medical/ physical/procurement standards"

16.  Counsel provides multiple Electronic 1559s and modified report of investigative inquiries that show the applicant raised various issues through his Member of Congress and the DAIG.  His issues were worked through multiple IG offices, including the DAIG, U.S. Army Training and Doctrine Command (TRADOC) IG, U.S. Army Recruiting Command (USAREC) IG, and the Fort Benning IG, in addition to an Army Regulation 15-6 investigation, and local inquiries.  As a result, multiple Electronic 1559s and modified reports were issued.  They essentially show: 

	a.  In October 2008, upon the applicant's request, a Congressional Inquiry and a subsequent Army Regulation 15-6 investigation were completed.  It appears that as a result of the Congressional Inquiry, three drill sergeants had been relieved and changes were made within the applicant's former unit.   

	b.  On 25 November 2008, the applicant complained to the DAIG about his
ill-fitting shoes, bad pillow, having to carry a duffle bag, drill sergeant wrath, restrictive mail calls, unauthorized use of cell phones and MP3 players, work details, long lines at the chow line, stress, disrespect, mental and emotional abuse and maltreatment within his platoon, and recruiter improprieties.  The DAIG assigned his case to the TRADOC IG.

	c.  Modified report of investigative inquiry, dated 7 January 2010, was completed in response to the applicant's allegation of mistreatment.  The applicant's allegation was not substantiated. 

	d.  An Electronic 1559, dated 5 August 2010, shows TRADOC conducted an inquiry into allegations of recruiter improprieties in that the applicant's recruiter falsified his pre-enlistment diagnostic Army Physical Fitness Test (APFT) and improperly advised him to conceal relevant medical information that existed prior to his enlistment.  Both allegations were not substantiated.

17.  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 EPSBD.  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 from 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.

18.  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.

19.  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) before enlistment into the RA.  Provided the applicant meets and maintains the prescribed prerequisites and has qualifying loans in good standing, enlistment for the LRP ensures that the portion or amount of loan that may be repaid is $1,500.00 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.

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

* current or history of ankylosing spondylitis or other inflammatory spondylopathies
* current or history of any condition, including but not limited to the spine or sacroiliac joints, with or without objective signs that:

* prevents the individual from successfully following a physically active vocation in civilian life or that is associated with local or referred pain to the extremities, muscular spasm, postural deformities, or limitation of motion
* requires external support
* requires limitation of physical activity or frequent treatment 

* Current deviation or curvature of spine (737) from normal alignment, structure, or function if: 

* prevents the individual from following a physically active vocation in civilian life
* interferes with the proper wearing of a uniform or military equipment
* 
is symptomatic 
* 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

21.  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 rights 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.

22.  The Joint Federal Travel Regulation (JFTR) contains basic statutory regulations concerning official travel and transportation of members of the Uniformed Services.  Appendix A shows the HOR is the place recorded as the home of the individual when commissioned, appointed, enlisted, inducted, or ordered into a tour of active duty.  The Place from Which called or Ordered to Active Duty (PLEAD) is the place of acceptance in current enlistment, commission, or appointment of members of the regular services.  The JFTR, chapter 5, part B, section 8 states in paragraph U5125 that a member who is separated from the service or relieved from active duty under conditions other than those in paragraph U5125-A5, paragraphs U5125-B and U5125-C, and paragraph U5130-A1 (none applicable in the applicant's case), is authorized travel from the last permanent duty station to the HOR or PLEAD, as the member elects.  Additionally, a member who is separated from the service or relieved from active duty during the initial enlistment period or agreed period of service and whose period of active duty service at separation is less than 90% of the active duty period for which the member initially enlisted or otherwise agreed to serve must be provided only transportation in kind (no per diem) by the least expensive transportation mode available or an amount not to exceed the Government's cost of such transportation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant executed an enlistment contract for officer training on 12 August 2008.  Shortly thereafter, he complained of pain secondary to carrying a duffle bag.   Medical officials and his commander convened an EPSBD to consider his condition.  The board found his scoliosis and disc condition existed prior to his service.  He received notice of the recommended separation and he was advised of his rights, specifically to speak with an attorney.  He concurred with the EPSBD's recommendation and requested an immediate discharge.  He was subsequently discharged on 11 September 2008 for failing medical procurement standards with an uncharacterized characterization of service.

2.  With respect to his character of service:

	a.  The evidence of record shows that while in BCT, the applicant failed medical/physical/procurement standards.  He was given four choices on his EPSBD proceedings, including 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.  He elected immediate discharge.  His chain of command concurred and the separation authority ultimately approved his discharge.  All requirements of law and regulation were met and his rights were fully protected throughout this process.

	b.  During the first 180 days of continuous active military service, a member's service is under review.  When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant an under other than honorable conditions discharge.  An honorable characterization may be given only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and is approved by the Secretary of the Army.  

	c.  The entry-level separation is given regardless of the reason for separation. An uncharacterized separation 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 his or her character of service to be rated as honorable or otherwise.

3.  With respect to his rank/grade, his argument that he should have been discharged in a rank/grade commensurate with that he would have held (he and counsel believes it to be CPT/O-3) lacks any merit and is speculative at best.  

	a.  He enlisted in the RA in the rank/grade of SPC/E-4.  His EPTS condition led to his failure to meet procurement standards.  He did not even meet procurement standards, let alone retention standards.  He never completed BCT, or OCS, or any of the multiple military legal, professional, medical, moral, or educational requirements for appointment as an officer.  

	b.  Prior to promoting an officer to the next higher grade, the officer must be fully qualified (physically, morally, educationally, and meet other criteria) for consideration by a promotion board; must be selected; and after being selected, must be fully qualified for promotion.  In the applicant's case, he was never qualified to become an officer.  There are no provisions to hand out direct promotions to CPT.  The applicant was correctly discharged in the rank/grade he held at the time of his separation.

4.  With respect to entitlement to pay and allowances, his argument also lacks any merit.

	a.  Generally speaking, a Soldier is entitled to pay only when he/she performs specified duties.  Even if the separation was wrongful, which is not the case here, in the absence of the applicant actually having performed duties for which the Government is obligated to pay, there is no debt for which the Government is liable.  

	b.  There is no statute or regulation that mandates pay for service never actually performed by a member.  In the absence of such a statute or regulation, the applicant cannot demonstrate a substantive right to pay for the period of constructive service.  Lacking such a pay-mandating statute in which to base his claim, the applicant is neither entitled to back pay nor should he receive any.

5.  With respect to payment of his loans under the LRP, upon his enlistment, the applicant acknowledged that he fully understood payment of his eligible loans was contingent upon his completion of the required active duty that he agreed to. He failed to do so.  He should not be allowed to profit from his failure to live up to Army standards.  The applicant failed to fulfill his LRP contract and he is not entitled to relief.  

6.  With respect to reimbursement for the airfare he incurred to travel to his parent's home as a result of being wrongfully discharged, under the JFTR, when a member is administratively discharged, he or she is authorized to travel to his/her HOR.  The HOR is the home that the member provides on his/her enlistment contract.  In the applicant's case, he listed his HOR as Powder Springs, GA.  If he elected to travel to another location, he incurs the additional costs for travel.


7.  With respect to the arguments provided by counsel:

	a.  Commanders, leaders, and noncommissioned officers throughout the Army strive to treat Soldiers in training or in their parent units with respect and dignity.  Leaders make every effort to provide a safe, productive, and professional environment for Soldiers to learn and train.  In those instances where a Soldier feels mistreated, various avenues exist - chain of command, NCO support channel, commander's open door policy, IG, Staff Judge Advocate, and other agencies - to resolve these issues.

	b.  Subsequent to his discharge, the applicant made various allegations through his Member of Congress and the DAIG.  He described his experience of ill-fitting shoes, bad pillow, having to carry a duffle bag, drill sergeant wrath, restrictive mail calls, unauthorized use of cell phones and MP3 players, work detail, long lines at the chow line, stress, disrespect, mental and emotional abuse and maltreatment within his platoon, and recruiter improprieties.  Various IG issues dealt with those issues. 

	c.  Specifically, he raised the allegation of mistreatment, recruiter improprieties in that the applicant's recruiter falsified his pre-enlistment diagnostic APFT, and improperly advised him to conceal relevant medical information that existed prior to his enlistment.  However, the various IG reports clearly show none of his allegations were substantiated.  

	d.  Even if an Army Regulation 15-6 found a questionable training environment in the applicant's unit and even if some of the drill sergeants were relieved, it is unclear how the applicant and his counsel draw a correlation between the applicant's EPTS condition and the poor treatment by some of the drill sergeants.

	e.  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 the 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.

	f.  The fact is the applicant had an EPTS condition.  He was appropriately assessed and discharged for this EPTS condition.  He understood the medical findings and concurred with them.  He specifically requested to be discharged as soon as possible.  He specifically rejected any attempts to remain on active duty or characterize his discharge as something other than EPTS.
8.  In view of the foregoing, there is insufficient basis to grant his 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 to amend the decision of the ABCMR set forth in Docket Number AR20100029707, dated 15 December 2009.



      _________x_____________
               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)                                         AR20100029707



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100029707



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1