IN THE CASE OF: 

		BOARD DATE:	  23 July 2013

		DOCKET NUMBER:  AR20130021548 


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, an upgrade of his uncharacterized discharge and correction of the narrative reason for separation from "Failed Medical/Physical Procurement Standards" to a disability discharge.

2.  The applicant states:

* a military doctor reviewed his civilian records and improperly made a decision based on incompetence and lack of knowledge of his condition
* his drill sergeant did not live up to the Army values of duty, respect, honor, or integrity
* he also was supposed to see a surgeon in Columbus, GA but couldn't because of his chain of command 
* he is aware of the various investigations involving mistreatment of Soldiers of G Troop, 5th Squadron, 15th Cavalry, 194th Armor Brigade
* when he had his accident in August 2010, the hospital treated him for his neck, arms, elbow, and head
* most of the CT scans and x-rays were for preventive measures because of the nature of his accident - a fall from a truck
* they only found a laceration and a little bleeding in the brain; he was released and a few months later he was 100 percent healthy
* if he did have this condition before entering the Army, he would not have been able to pass the Army Physical Fitness Test (APFT)
* his drill sergeant broke his profile and stated that he did not have to follow a piece of paper
* by ignoring the profile, the drill sergeant contributed to the re-aggravation of his fractured vertebra and further slipped his disc
* this action lead to back surgery when he got home and he is now in need of additional surgery to correct the problem caused by him
* he is lucky he is still walking because the slippage could have severed his spinal cord 
* his condition was not a preexisting condition; he should be given a better discharge or be allowed reentry to finish his contract  

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings) 
* DA Form 3349 (Physical Profile)
* DD Form 2697 (Report of Medical Assessment)
* Recommendation for EPTS discharge and counseling
* Pre-service hospital discharge instructions, hospital reports, and related documents
* Separation orders 
* DA Form 705 (APFT Scorecard)
* Military Entrance Processing Processee/Enlisteee Record and allied documents
* DD Form 4 (Enlistment/Reenlistment Document) and allied documents
* Various TRICARE and non-TRICARE health records

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he underwent an enlistment physical at the San Antonio Military Entrance Processing Station on 6 July 2011.  He answered in the negative to all medical questions related to prior injuries, illnesses, disease, or surgeries.  

2.  He enlisted in the Regular Army on 7 February 2012.  He was subsequently assigned to G Troop, 5th Squadron, 15th Cavalry, Fort Benning, GA.  During week 3 of training, he was identified as having an EPTS condition on 1 March 2012 and his paperwork was received on 8 March 2012.  

3.  His DA Form 4707, dated 8 March 2012, shows after careful consideration of his medical records, laboratory findings, and medical examination, the board found the applicant was medically unfit for enlistment in accordance with current medical fitness standards and in the opinion of the evaluating physician, the conditions existed prior to service.  
	a.  Subjective Finding:  He suffered from chronic lower back pain caused by an acquired deformity known as spondylolysis of the L5 vertebrate and spondylolisthesis of L5/S1.  This may have been caused by a previous injury.  He noted pain that is severe and limits his ability to walk, sit or stand for prolonged periods of time.

	b.  Objective Finding:  Alert and oriented NAD, appears uncomfortable with sitting and stands with rigidness, slow atalgic gait, limited range of motion (ROM) of lumbar spine, pain with ROM in all directions, decrease in sensation over lower back and left leg, pain with flexion and extension of legs, positive straight leg raise of left leg, negative Waddell's, reflexes normal, negative plantar reflex.

	c.  Laboratory/x-ray results:  L-Spine X-ray and MRI shows chronic spondylolysis of L5 and spondylolisthesis of L5/S1.

	d.  Diagnosis:  Spondylolisthesis (738.4) and Spondylolisis.

	e.  Disposition:  It is recommended that EPTS medical separation be completed on this service member.  This Soldier does not meet medical fitness standards for enlistment in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 2-29i; EPTS: Yes; Service aggravated: No.  It is recommended that he be separated from the military service.

4.  On 19 March 2012, the medical approving authority approved the findings of the EPSBD and recommended that the applicant be separated from the service under the provisions of paragraph 5-11 of Army Regulation 635-200 (Personnel Separations-Active Duty Enlisted Administrative Separations). 

5.  On 28 March 2012, the applicant acknowledged that he had been informed of the medical findings.  Additionally, he understood that legal advice of an attorney employed by the Army was available to him or that he may consult civilian counsel at his own expense.  He also understood that he may request to be discharged from the U.S. Army, without delay or to request retention on active duty.  If retained, he may be involuntarily reclassified into another military occupational specialty based upon his medical condition.  Subsequent to this counseling, he concurred with the proceedings and elected to be discharged from the Army without delay.   He also submitted a sworn statement in connection with his request.  He indicated he previously had a car accident on 18 August 2010. 

6.  On 28 March 2012, his unit commander recommended approval of his discharge.  

7.  On 29 March 2012, the discharge authority approved the applicant's separation from the Army.  Accordingly, he was discharged on 5 April 2012.  

8.  The DD Form 214 he was issued shows his character of service was uncharacterized under the provisions of paragraph 5-11 of Army Regulation 635-200, by reason of failure to meet procurement medical fitness standards.  It shows he completed a total of 1 month and 29 days of creditable service.  It also shows in:

* Item 26 (Separation Code) - JFW
* Item 27 (Reentry (RE) Code) - 3

9.  On 14 January 2013, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable.  As a result, the ADRB voted unanimously to deny him a change to the characterization of service. 

10.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 5-11 specifically provides that Soldiers who are 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 conducted by an EPSBD, 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 of enlistment, 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 (entry level status) if the Soldier has not completed more than 180 days of creditable continuous active duty service prior to the initiation of separation action.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, U. S. Code (USC) , Chapter 61, (10 USC 61) and Department of Defense Directive 1332.18.  It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  Soldiers are referred into the PDES system when it is determined that they did not meet physical standards for enlistment, appointment and/or induction in accordance with chapter 2 of Army Regulation 40-501, or they no longer meet medical retention standards in accordance with chapter 3, Army Regulation 40-501.

12.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation.  Chapter 2 provides for the physical standards for enlistment/induction.  Paragraph 2-29(i) states, in part, any current or history of spondylolysis (congenital (756.11) or acquired (738.4)) and spondylolisthesis (congenital (756.12) or acquired (738.4)) do not meet the standard.

13.  Army Regulation 635-200 describes the different types of characterization of service.  Chapter 3 of the version in effect at the time stated a separation will be described as an entry level separation with service uncharacterized if processing is initiated while a Soldier is in entry level status, except in the following circumstances:

	a.  When characterization Under Other Than Honorable Conditions is authorized under the reason for separation and is warranted by the circumstances of the case.

	b.  The Secretary of the Army, on a case–by–case basis, determines that characterization of service as Honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.  This characterization is authorized when the Soldier is separated by reason of selected changes in service obligation, convenience of the Government and Secretarial plenary authority.

	c.  For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break of more than 92 days of active military service.

	d.  Paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’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.

14.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Table 3-1 includes a list of the RE codes. 
* 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
* 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

15.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states SPD codes are three-character alphabetic combinations that identify reasons for and types of separation from active duty.  The SPD code JFW is the correct code for Soldiers separating under the provisions of Army Regulation 635-200, paragraph 5-11, by reason of failure to meet procurement medical fitness standards.

16.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  The cross reference table in effect at the time of her discharge shows the SPD code JFW has a corresponding RE code 3.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the narrative reason for his separation should be changed to show he was discharged for disability and his discharge should be honorable.   

2.  With respect to the EPTS entry: 

	a.  The evidence of record shows prior to his entry on active duty, the applicant was injured in a car accident.  He underwent hospitalization and treatment.  The EPSBD proceedings clearly established that he suffered from a disqualifying medical condition that existed prior to his service.  Because this condition was identified within his first 180 days of service, his discharge was appropriately characterized as an entry-level characterization of service (uncharacterized).  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

	b.  According to accepted medical principles, the manifestation of a chronic disease from date of entry on active military service (or so close to that date of entry that the disease could not have started in so short a period) is accepted as proof that the disease existed prior to entrance into active military service.  


Consequently, his records were evaluated by an EPSBD.  He concurred and requested immediate discharge. 

	c.  His narrative reason for separation was assigned based on the fact that he was separated under the provisions of chapter 5-11 of Army Regulation 635-200 due to his EPTS condition that resulted in his failing medical procurement standards.  Absent the pre-existing medical condition, there was no fundamental reason to consider his records by an EPSBD.  The underlying reason for his EPSBD was his EPTS condition.  The only valid narrative reason for separation permitted under that paragraph is "failed Medical/Physical/procurement Standards."  Therefore, the applicant received the proper narrative reason for separation.

3.  With respect to the characterization of service: 

	a.  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 the characterization must be approved by the Secretary of the Army.  

	b.  The entry-level separation (uncharacterized) is given regardless of the reason for separation.  This uncharacterized character of service is neither positive nor negative; it is not "derogatory."  It simply means the Soldier did not serve long enough to qualify for a specified characterization of service.  The applicant received the appropriate character of service. 

4.  With respect to his reentry into military service:

	a.  The applicant was assigned an RE code of 3 which 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.

	b.  His RE code was assigned based on the fact he was separated under the provisions of Army Regulation 635-200, paragraph 5-11, by reason of failure to meet procurement medical fitness standards.  The appropriate separation code associated with this type of discharge is "JFW" and the corresponding RE code associated with this separation code and type of discharge is RE-3.  He received an RE-3.

	c.  The ABCMR does not establish eligibility for entry into the Army nor does it correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised that if he desires to reenter military service, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and are responsible for processing requests for enlistment waivers.

5.  There is no evidence in the available records nor did the applicant provide evidence to substantiate a correction to the narrative reason for separation or characterization of service.  As such, he is not entitled to the requested relief. 

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)                                         AR20130021548





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ABCMR Record of Proceedings (cont)                                         AR20130021548



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