IN THE CASE OF:	   

		BOARD DATE:	  26 August 2014

		DOCKET NUMBER:  AR20140001006 


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, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) by:

	a.  changing his characterization of service to honorable;

	b.  showing he was separated due to a physical disability; and

	c.  showing a corresponding separation program designator (SPD) code and narrative reason for separation.

2.  The applicant states he was in the Army National Guard (ARNG) for more than 180 days prior to active duty for training.  He argues that because of his ARNG service, his DD Form 214 should show an honorable characterization of service.  The applicant also states he injured his back and knee while on duty.

3.  The applicant provides copies of:

* DD Form 214
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 9 September 2003
* Standard Form 600 (Chronological Record of Medical Care), dated          13 January 2004
* Record of Medical Care, dated 27 January 2004
* Consult Report, dated 28 January 2004
* DA Form 3349 (Physical Profile), dated 28 January 2004
* Fort Knox "IET" Sick Slip, dated 4 February 2004
* Standard Form 600, dated 4 February 2004
* Standard Form 600 (Automated Version), dated 5 February 2004
* Memorandum, U.S. Army Medical Department Activity, Fort Knox, KY, dated 5 February 2004
* Memorandum, Notification of Service Member Pending an Entrance Physical Standards Board (EPSBD), dated 5 February 2004
* Medical Record Report, Medical 200 Board (MEDBD), dated 5 February 2004
* DA Form 3349, dated 5 February 2004
* Standard Form 600 (Automated Version), dated 11 February 2004 (two pages)
* DA Form 4707 (EPSBD Proceedings), initiated 11 February 2004
* Memorandum, EPSBD Proceedings, dated 19 February 2004
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), effective 3 March 2004
* Orders 411-005, State of Idaho, dated 25 March 2004
* NGB Form 23A (Army National Guard Current Annual Statement), prepared 1 April 2004
* Department of Veterans Affairs (VA) Rating Decision, dated 15 December 2012 (5 pages)

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's NGB Form 22 shows that he enlisted in the U.S. Army Reserve (USAR) and the Idaho ARNG (IDARNG) on 22 November 2002.

3.  A DA Form 2173, dated 12 September 2003, shows the applicant sustained an injury to his right knee on 6 September 2003 while training with the IDARNG.  His injury was determined to have been in the line of duty.

4.  On 30 September 2003, the applicant was ordered to active duty for training and was subsequently assigned to Fort Knox, KY.

5.  Medical documentation provided by the applicant shows:

	a.  On 13 January 2004, he was evaluated at the Department of Behavioral Health, Ireland Army Community Hospital.

	b.  On 27 January 2004, he was examined for a complaint of congested sinuses and lower back pain.  He also had a sharp pain in his left foot.

	c.  On 28 January 2004, he was examined for lower back pain.  He stated that he always had back problems, but since being at Fort Knox the pain had increased.

	d.  On 28 January 2004, he was issued a temporary physical profile restricting him from running, jumping, marching, or carrying a rucksack until 28 February 2004.

	e.  On 4 February 2004, a Standard Form 600 reports he was placed in physical therapy for pre-existing lower back pain.

	f.  On 5 February 2004, an automated Standard Form 600 reports that, at the military entrance processing station (MEPS), the applicant did not mention anything about lower back pain with radiation to both legs when running or marching.

6.  On or about 5 February 2004, a MEDBD revealed the applicant stated he always had back problems.  He had a motor vehicle accident prior to coming into the military and he was told he had crushed vertebra.  He did not reveal this to MEPS on the entrance physical.  He did not feel he was going to be able to complete his training because of the pain.  His physical examination showed he was well developed and had a full range of motion and negative straight leg raise.  He was able to toe and heel walk.  He was tender to palpation over the spinous process from L-3 to L-5, as well as the paraspinals on the right in this area.  He was diagnosed with lower back pain, existed prior to service (EPTS), not revealed at the MEPS.  Recommendation was that he failed to meet retention criteria in accordance with Army Regulation 40-501, paragraph 2-37.  A waiver was not recommended.  A physical evaluation board (PEB) was recommended for further adjudication.

7.  On 5 February 2004, the applicant was issued a temporary physical profile, but it did not provide a termination date.
8.  On 11 February 2004, an EPSBD found the applicant medically unfit for enlistment in accordance with medical standards as a result of EPTS conditions.  The proceedings were approved on 18 February 2004.

9.  On 19 February 2004, the applicant concurred with the EPSBD proceedings and requested to be discharged from the U.S. Army without delay.

10.  On 2 March 2004, the applicant was released from active duty training, discharged from the USAR, and returned to the ARNG under the provisions of Army Regulation 635-200, paragraph 5-11 due to failing medical/physical procurement standards.  He completed 5 months and 3 days of active duty training.  He was not awarded a military occupational specialty.  He was given an uncharacterized characterization of service, assigned an SPD code of LFW, and a reentry code of 3 (RE-3).

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 5, provides for separation of enlisted Soldiers for non-service aggravated conditions that were EPTS when the Soldier requests waiver of PEB evaluation.  This chapter is applicable to enlisted Soldiers on active duty for more than 30 days.  The case must meet the following conditions:  (1) Soldier is eligible for referral into the disability system; (2) the Soldier does not meet medical retention standards as determined by the MEDBD; (3) the disqualifying defect or condition existed prior to entry on current period of duty and has not been aggravated by such duty; (4) the Soldier is mentally competent; 
(5) knowledge of information about his or her medical conditions would not be harmful to the Soldier’s well being; (6) further hospitalization or institutional care is not required; (7) after being advised of the right to a full and fair hearing, the Soldier still desires to waive PEB action; and (8) Soldier has been advised that a PEB evaluation is required for receipt of Army disability benefits, but waiver of the PEB will not prevent applying for VA benefits.  Unless otherwise indicated, the Soldier will be separated with an honorable or general discharge.  If the Soldier is in entry level status at the time of processing, service will be uncharacterized.

12.  Army Regulation 635-200 (Personnel Separations):

	a.  Paragraph 5–11 provides for the separation of individuals due to failing medical/physical procurement standards.

	b.  Entry level status is defined as the first 180 days of continuous active duty.  It further states that the character of service for members separated under the provisions of this chapter will be uncharacterized.

13.  Army Regulation 601-210 prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE Codes including RA RE codes.  RE- 3 applies to persons separated from their last period of service with a waivable disqualification.

14.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities and reasons for separating Soldiers from active duty and the SPD codes to be entered on the DD Form 214.  The SPD code of LFW was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of Army Regulation 635-200, paragraph 5-11, due to failed medical/physical procurement standards.  Additionally, the SPD/RE Code Cross Reference Table establishes RE-3 as the proper RE code to assign to Soldiers for this reason.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his DD Form 214 should be corrected by:

	a.  changing his characterization of service to honorable;

	b.  showing he was separated due to physical disability; and

	c.  showing a corresponding SPD code.

2.  The available evidence clearly shows the applicant was diagnosed with an EPTS condition (back problems, from a motor vehicle accident) that was unfitting and precluded his retention on active duty.

3.  The applicant had not completed 180 days or more of active duty service at the time of his separation.  Therefore, he was still in an entry level status requiring his service to be defined as uncharacterized.

4.  The applicant's argument that his service in the ARNG of more than 180 days should qualify him for an honorable characterization of service is incorrect because it was a previous period of inactive duty.

5.  The narrative reason for his separation showing he failed to meet medical/physical procurement standards is correctly entered on his DD Form 214.

6.  The SPD code LFW and RE code of 3, establishing his ineligibility for enlistment/ reenlistment without waiver, were correctly entered on his separation document in accordance with governing regulations.  There is no apparent basis for removal or waiver of the applicant’s disqualification.

7.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20140001006



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ABCMR Record of Proceedings (cont)                                         AR20140001006



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