IN THE CASE OF:	  

		BOARD DATE:  23 January 2014

		DOCKET NUMBER:  AR20130006972 


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 that the character of his service be changed from uncharacterized to honorable. 

2.  The applicant states his character of service is currently listed as uncharacterized.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's DD Form 214 be corrected by changing item 24 (Character of Service) from uncharacterized to honorable.

2.  Counsel submitted a 9-page supplemental statement wherein he essentially states the applicant's:

	a.  low back injury was misdiagnosed and he was unaware he could have requested medical tests such as a magnetic resonance imaging (MRI) that would have corrected his misdiagnosis.  When an x-ray revealed he had 6 lumbar vertebra (one extra), the military doctors assumed this congenital condition caused damage to the disk between L5 and L6; 

	b.  separation was not processed in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement or Separation) despite the requirements of Army Regulation 635-200 (Enlisted Separations), “Chapter C,” section III, paragraph 5-11 (Existed Prior to Service (EPTS)); 

	c.  was not advised that he had the right to consult with and be represented by a lawyer; 

	d.  was not Mirandized during a criminal investigation for fraudulent enlistment but made to complete a written questionnaire asking him to confess; and 

	e.  he was not advised of the fact he would receive an uncharacterized discharge with a separation code of JFW, a reenlistment code of 3, and that this type of discharge could bar him from working for many federal and state agencies to include any military service.

	f.  he was not counseled by the Physical Evaluation Board Liaison Officer concerning his legal rights and the sequence and nature of disability processing.

3.  Counsel submitted a memorandum in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Regular Army (RA) on 7 January 2009.  

2.  The applicant's record contains:

	a.  a DD Form 2807-1 (Report of Medical History), dated 7 June 2008, which shows in item 12c:  Recurrent back pain or any back problem, he checked "NO.”

	b.  a DD Form 2808 (Report of Medical Examination), dated 7 June 2008, which shows in item 36 (Spine, other musculoskeletal) "NORMAL" is checked.

	c.  ten DA Forms 4856 (Developmental Counseling Form), dated from 
31 January to 8 March 2009, which show he was:

		(1)  counseled for failure to follow standards, missing training to include taking the Army Physical Fitness Test due to going on sick call on more than one occasion, being recommended for separation under paragraph 5-11.  

		(2)  informed that action could be initiated to separate him from the Army in accordance with Army Regulation 635-200. If he were voluntarily separated he could receive an honorable, general under honorable conditions, or an under other than honorable conditions discharge, and an uncharacterized characterization of service may be awarded if he had less than 181 days of continuous service.

		(3)  informed that if he received a less than honorable discharge, he would be ineligible for reenlistment and most benefits.  He would also face difficulty in obtaining civilian employment.

   d.  a DA Form 2823 (Sworn Statement), dated 9 March 2009, wherein the applicant stated he was being discharged due to EPTS and was unaware of his medical condition.
   
   e.  a memorandum from his commander, dated 11 March 2009, which stated the applicant was being separated from the Army prior to the expiration of his current term of service, in accordance with Army Regulation 635-200, section III, paragraph 5-11, for a medical condition that was EPTS (degenerative disc changes, 6 lumbar vertebra; chronic back pain) and recommended he be discharged and receive an entry-level separation.

   f.  a memorandum, Subject:  Reassignment and Separation of the Applicant, dated 11 March 2009, which he signed stating he was not a victim of sexual assault.
   
   g.  a memorandum rendered by the approval authority, dated 17 March 2009, directing that the applicant be reassigned and separated in accordance with Army Regulation 635-200, chapter 5, section III, paragraph 5-11 for his medical condition that was EPTS, degenerative disc changes, 6 lumbar vertebra; chronic back pain.
   
   h.  the front page of DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings), dated 9 April 2009, which shows in item 8 (Findings by the Evaluating Physicians):

		(1)  25 year old male in his 5th week of basic training was identified as having an EPTS condition on 13 February 2009.

		(2)  Subjective:  with history of low back pain worsening with activities/physical strain that started in his 5th week of basic training.  He indicated no history of back pain, fall, or accident prior to service.

(3)  Objective:  physical exam deferred.

		(4)  Results:  Results of spinal x-ray on 23 February 2009 showed six lumbar vertebra.  Bone scan on 25 February 2009 shows very minimal intervertebral bodies L5-L6 with degenerative changes.

		(5)  Diagnosis:  intervertebral disc changes, lumbar vertebra, and 
chronic back pain.

		(6)  Disposition:  It was recommended he be separated from the military.  He did not receive a waiver for the above diagnosis. 

	i.  the reverse side of the DA Form 4707, dated 14 April 2009, which shows he concurred with his signature that in:  

		(1)  Item 21 (Action by Service Member), he had been informed of the medical finding, understood that legal advice of an attorney employed by the Army was available to him or he could counsel with civilian counsel at his own expense.  He could request to be discharged without delay or request to be retained and involuntarily reclassified into another military occupational specialty based on his medical condition.  The applicant's record is void of any evidence he sought Army or civilian counsel.

		(2)  Item 21 that he concurred with the proceedings and requested to be discharged from the Army without delay.

		(3)  Item 25 (Action by Unit Commander) Service Member will be discharged/separated from the Army.

3.  His DD Form 214 shows he was discharged on 16 April 2009, after service on active duty for 3 months and 10 days, under the provisions of Army Regulation 635-200, paragraph 5-11, for failing medical/physical/ procurement standards, with an uncharacterized discharge.  The DD Form 214 he was issued shows in:

* Item 23 (Type of Discharge) "Discharged"
* Item 24 "Uncharacterized"
* Item 26 (Separation Code) "JFW"
* Item 27 (Reentry Code) "3"

4.  On 30 March 2011, the Army Discharge Review Board disapproved the applicant's request for upgrade of his discharge. 

5.  Counsel submitted a memorandum from the Langone Medical Center, dated 23 June 2011, which indicated the applicant was in excellent medical health on 27 March 2008.
6.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  

	a.  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, active duty for 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 the time, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501, chapter 3.  The characterization of service for Soldiers separated under this provision will normally be honorable, but will be uncharacterized if the Soldier has not completed more than 180 days of creditable continuous active duty prior to the initiation of separation action.
   
   b.  Army Regulation 635-200 further states that prior to discharge or release from active duty individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve.  Table 3-1 included a list of the RA RE codes:

		(1)  RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

		(2)  RE-2 is no longer used, effective 1995.

   (3)  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.

   (4)  RE 4 applies to persons not qualified for continued Army service and the disqualification is not waivable.

7.  Army Regulation 635-5-1 Separation Program Designator (SPD) Codes prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation shows that the SPD "JFW" as shown on the applicant's DD Form 214 specifies the narrative reason for discharge as "Failure to Meet Procurement Medical Fitness Standards" and that the authority for discharge under this SPD is "Army Regulation 635-200, paragraph 5-11."

8.  Army Regulation 40-501 governs medical fitness standards for induction, enlistment, appointment, retention, separation, retirement, officer procurement programs and related policies and procedures.  Chapter 2 provides standards for medical procurement.  Paragraph 2–29 states a current or history of any condition, including, but not limited to the spine or sacroiliac joints, with or without
objective signs that require limitation of physical activity or frequent treatment does not meet the standard.

9.  Army Regulation 635-40, chapter 5, provides that if a Soldier is processed for failure to meet procurement medical fitness standards within the first six months of entry on active duty and the condition is EPTS, then the Soldier will be discharged in an entry level status with uncharacterized service.

10.  Field Manual 27-1 (Legal Guide for Commanders) provides that:

	a.  witnesses who are not suspects do not need a rights warning, unless during questioning one begins to suspect that a witness was involved in an offense. 

	b.  a sworn statement is the best way to record accurately and completely information obtained in an investigation.  Article 136, of the Uniform Code of Military Justice authorizes investigators to administer oaths in conjunction with sworn statements.  The DA Form 2823 may be used to obtain a witness statement from persons who have direct, personal knowledge of the facts.  An appropriate oath for administering and completing the sworn statements is "do you swear that the statements you have made are the truth, the whole truth, and nothing but the truth?"  The witness should sign his name and the administering official then signs his own name.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that, while attending basic training, the applicant was diagnosed as having intervertebral disc changes, lumbar vertebra, and chronic back pain.  He appeared before an EPSBD which determined he did not meet medical fitness standards for enlistment or induction under the provisions of Army Regulation 40-501.  His condition was listed as EPTS.  

2.  While Soldiers often enter active duty with existing and sometimes unknown medical conditions, many of them successfully complete their initial entry training.  Unfortunately, some are unable to complete their training because the rigor of basic combat training is too strenuous to complete with the medical condition.  Since there are Soldiers who cannot complete their training, they must be discharged.

3.  The applicant was found unfit for military service by a medical board after his entry on active duty because of his inability to complete mandatory training. His DA Form 4707 shows he was informed of the medical condition, counseled for and concurred that he understood his right to obtain counsel regarding his right to obtain Army and civilian counsel, and that he could request to e discharged without delay or request to be retained.  The applicant concurred with that finding and requested discharge without delay.

4.  Accordingly, he was discharged under the provisions of Army Regulation  635-200, paragraph 5-11, for failure to meet medical fitness standards with his service uncharacterized.  He was properly given an SPD Code of "JFW."  As a result, he is not entitled to have his SPD code changed to a more favorable SPD code.

5.  Uncharacterized service is not derogatory, but is used if the Soldier has not completed more than 180 days of creditable continuous active duty prior to the initiation of separation.  It merely means the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise.  The applicant may want to so inform any potential employers.

6.  Therefore, he is not entitled to have his character of service changed to honorable.

7.  Evidence of record shows that the applicant signed a DA Form 2823 stating that he made a statement under oath.  There is no evidence nor did he submit any evidence that shows he was being investigated for fraudulent enlistment or that at any time did the questioner suspect that he was involved in a fraudulent enlistment.  Therefore, he was not entitled to a reading of his Miranda or warning rights.

8.  There is no evidence of record and the applicant provides no evidence which shows the narrative reason given to him was in error or unjust.  Therefore, there is no basis for changing his narrative reason for discharge.

9.  The applicant's separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.  The type of discharge directed and the reasons for that separation were appropriate considering all of the facts of the case.

10.  The ABCMR does not correct records solely for the purpose of establishing eligibility for programs or benefits.  The applicant is advised that although no change is being recommended to his RE code, this does not mean that he is disqualified from reentering military service.  An RE code 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.  If the applicant still desires to reenter the Army, he should contact a local recruiter who can best advise a former service member as to the needs of the Army at the time.

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.



      _______ _  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)                                         AR20130006972



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ABCMR Record of Proceedings (cont)                                         AR20130006972



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