BOARD DATE:	  26 May 2015

		DOCKET NUMBER:  AR20140013760 


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 correction of his military records as follows:

* change the characterization of his discharge to honorable
* change the separation program designator (SPD) code from "JFW"
* reentry eligibility (RE) code be changed from "3" to "1"
* correct his service medical records to show his injury in August 2012 while on active duty was a service-connected injury instead of existing prior to service (EPTS)
* change the Entrance Physical Standards Board (EPSBD) proceedings, medical records, medical evaluation and his DA Form 3349 (Physical Profile) to show he did not have an EPTS medical condition

2.  The applicant states he entered active duty (EAD) on 21 August 2012 and he was assigned to in-process at Fort Benning, GA.  During the week of in-processing his right shoulder became irritated and/or inflamed.  This inflammation was probably a result of a freak accident, apparently caused by lifting his duffle bag and throwing it over his shoulder.  On 28 August 2012, he was seen at sick call by he believes a physician assistant (PA).  He was later told the issue he was having with his right shoulder was from an EPTS condition relating to a sports related injury and the surgery that was performed to repair his injured shoulder (glenoid labrum tear) in June 2010.  He was never referred to a specialist nor did he have magnetic resonance imaging (MRI) to see if this assessment was actually medically accurate.  If this had happened, he, his civilian orthopedic surgeon, and his primary care manager believe he would still be on active duty.  He was informed the following week he was being medically separated for an EPTS condition.  He was told he should have never been allowed to enter on active duty since he was not medically fit at the time of his induction.

3.  Immediately after his release from active duty (REFRAD) his civilian orthopedic surgeon, Dr. C, examined his shoulder and made the medically prudent decision to order an MRI to document his physical evaluation of his shoulder.  Dr. C ascertained that the range of motion of his shoulder was within normal limits.  He performed both the Yergason Test and Hawkin's Test (rotator cuff injury) both of which had negative findings.  His medical assessment was that his shoulder was perfectly normal, healthy, and that his previous injury, which he had repaired over 2 years ago, was in no way connected to the minor problems that he encountered after he EAD.  Dr. C was not sure what caused the inflammation but stated that the location of the inflammation was not even in the same area of his shoulder where he had surgery (repair of the glenoid labrum of the right shoulder).  His assumption was that he somehow sprained or strained his shoulder, thereby making the strain that he experienced a "service connected" injury and not an EPTS injury.  His professional opinion and that of the radiologist who analyzed the MRI of his shoulder was that they could not find any evidence of any re-injury, aggravation, or inflammation to or surrounding the glenoid labrum.  Dr. C believed the PA who examined him at Fort Benning scantily reviewed his medical file and jumped to an incorrect assumption that his shoulder problem, which surfaced after his EAD, was related to the injury he suffered nearly 3 years ago.

4.  He states his DD Form 214 (Certificate of Release or Discharge from Active Duty) indicates he was "erroneously" enlisted in the military based on the SPD code "JFW."  He thinks this code was used based on the assumption in his active duty medical records, his physical profile, and the EPSB findings that he did not meet the medical procurement standards.  His DD Form 214 indicates that he would require a medical waiver to re-enter active duty, RE code "3."

5.  He was totally honest on his enlistment documents and the doctors at the Military Entrance Processing Station (MEPS) medically cleared him to EAD.  The physicians had before them the records of his civilian physicians, physical/occupational therapists, and accompanying radiology tests and reports.

6.  He states under the provisions of Army Regulation 40-400 (Patient Administration), paragraph 7-12d(8), he had the right to request to be retained on active duty.  He does not remember whether this right was afforded to him.  The section "Action by the Service Member" of the DA Form 4707 (EPSB Proceedings) states that he understood that legal advice of an attorney was available to him.  However, he states this statement was never explained to him.
7.  On 16 September 2012, a Sunday afternoon, a staff sergeant came into their barracks with a stack of papers and handed him and 15 other recruits documents and forms pertaining to their pending discharges.  They were very rushed to sign these papers.  He does not remember the sergeant giving or explaining their legal right to counsel or reviewing with them what they were asked to sign.  

8.  He concludes by stating that had he been given a few weeks to recuperate from his "service connected injury" with proper medical care, he knows he would have completed his initial entry training with minimal delay.  He still wants to serve his country.  The errors in the processing of his separation were egregious and he suffered an injustice. 

9.  The applicant provides a statement, dated 22 December 2012, with 17 enclosures.

CONSIDERATION OF EVIDENCE:

1.  The applicant provided civilian medical records from 2010 - 2011 from Dr. C, Dr. A, and occupational therapy.

	a.  Dr. A indicated, on 27 May 2010, the applicant was evaluated for a right shoulder injury that occurred several months ago while he was weight lifting.  He felt something pop and it was sore and numb for a little while.  Since then, it periodically bothered him, especially with weight lifting and throwing (playing baseball).

	b.  According to an Operative Report from Dr. C on 29 June 2010, the applicant underwent surgery for diagnostic right shoulder arthroscopy with arthroscopic repair of the labral tear and a partial debridement of the rotator cuff tear with a bursectomy of the subacromial space.

	c.  A letter, dated 16 March 2011, from Dr. C stated the applicant was doing just fine in his workouts and wanted to return to baseball.  He had full internal and external rotation, flexion, and abduction of the right shoulder.  He has no restrictions as far as running and weight lifting.  He could start pitching, but needed to keep his pitching counts below 60 pitches.

2.  A DD Form 2807-2 (Medical Prescreen of Medical History Report), dated 
1 March 2012, indicates the applicant had a "scope" done on his right labrum in June of 2010.  He went to Boys Town Research Hospital to have the "scope" done.  There had been no issues since.  The physician noted he needed all records regarding his shoulder surgery.

3.  A DD Form 2807-1 (Report of Medical History), dated 27 March 2012, indicated he had had surgery for right shoulder pain in June 2010.

4.  A DD Form 2808 (Report of Medical Examination), dated 27 March 2012, indicated he was physically qualified for enlistment.

5.  On 27 March 2012, he enlisted in the U.S. Army Reserve (USAR) Delayed Entry/Enlistment Program.  On 21 August 2012, he enlisted in the Regular Army. He did not complete basic combat training (BCT).

6.  A Standard Form (SF) 600 (Chronological Record of Medical Care), dated 27 August 2012, shows he was treated for right shoulder pain that he had experienced for 3 days.  He reported pain in the right shoulder joint with no right shoulder joint stiffness.  A popping sound was heard in the right shoulder.  The right shoulder joint did not feel unstable.  The pain scale was 6/10.  He was prescribed 500 milligrams of Naproxen and released to duty with limitations.  He was directed to follow up as needed. 

7.  On 28 August 2012, he was placed on temporary profile, to expire 26 November 2012, for his right shoulder pain.  His DA Form 3349 (Physical Profile), dated 28 August 2012, shows he was assigned the numerical designator "3" under "P" (physical capacity or stamina), "U" (upper extremities), and "L" (lower extremities).  He was not authorized to wear load bearing equipment to include body armor, fire a weapon, or wear chemical protective clothing.  Block 6 (Army Physical Fitness Test (APFT)) states no running, no push-ups or sit-ups and indicates no alternative APFT.  Block 8 (Functional Limitations and Capabilities and Other Comments) states no lifting/lowering/carrying or running. No weight bearing of more than 20 pounds per day and EPTS initiated.

8.  On 28 August 2012, an EPSBD was initiated and it stated the applicant was an 18 year old male in his first week of his initial enlistment training at the Reception Station who was identified as having an EPTS condition.

	a.  He had complaints of right shoulder pain for 1 week.  He had a history of injury to his right shoulder previously labral tear with surgery to correct condition 2 years ago.  He now experienced increased pain with activity.

	b.  The medical assessment shows right shoulder sensory intact, pulses intact distally with no swelling.  There is an old scar noted secondary to arthroscopic shoulder surgery.  Currently there is tenderness with palpation of anterior cuff insertion with decreased range of motion, particularly the internal rotation.  He had pain with external rotation without resistance and decreased motor strength was noted.  He was negative for the "O'Brien's test" and there was no instability or laxity noted on exam.  The physician indicated x-ray results were "not applicable" in this case.  

	c.  The diagnosis was right shoulder pain with no physical training authorized. The form notes the applicant did not receive a waiver for this diagnosis and the board recommended that he be separated from the military service.  

	d.  On 17 September 2012, the findings were approved by a medical doctor in the rank of major who was the approving authority.

9.  In a memorandum for record (MFR), dated 14 September 2012, the applicant waived his right to seek legal counsel concerning his chapter.  He did not desire legal assistance.  He also stated he did not want to remain on active duty.  He authenticated the MFR with his signature.

10.  Block 21 of the DA Form 4707 shows that on 17 September 2012, the applicant acknowledged he was informed of the findings of the EPSBD and advised that legal counsel from an Army attorney was available to him or he could consult a civilian attorney at his own expense.  He was further advised that he could request discharge from the Army without delay or request retention on active duty.  The applicant concurred with the proceedings and requested discharge from the Army without delay.

11.  On 17 September 2012, the applicant's company commander recommended the applicant be discharged or separated from the Army.

12.  On 19 September 2012, the discharge authority, a lieutenant colonel serving as the battalion commander, approved the recommendation of the EPSBD, and directed the applicant's discharge from the Army.

13.  On 25 September 2012, he was discharged under the provisions of paragraph 5-11 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) by reason of failure to meet medical/physical procurement standards.  He completed 1 month and 5 days of active service that was uncharacterized.  His DD Form 214 shows he was assigned the SPD code "JFW" and the RE code "3."  

	a.  SPD code "JFW" is defined in Army Regulation 635-5 (Separation Documents).  This regulation specifies the narrative reason for SPD code "JFW" as "Failed Medical/Physical/Procurement Standards" and that the authority for discharge under this SPD is Army Regulation 635-200, paragraph 5-11.

	b.  The SPD/RE Code Cross-Reference Table, dated March 2006, shows that the appropriate RE code for the SPD code "JFW" is "3."
14.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 17 May 2013, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as uncharacterized.  

15.  He provided a letter, dated 1 October 2012, from Dr. C, an orthopedic surgeon who states, in effect:

	a.  The applicant was doing very well postoperatively and having no discomfort until the day he was carrying rucksacks which weighed about 60  pounds.  He developed some anterior shoulder pain.  He was examined by one of the physicians in the military and then he was discharged because of his shoulder pain.

	b.  He was seeing the applicant for evaluation following his discharge.  He was doing better and only rated his pain about a 3 over 10.  He pointed to the anterior aspect of his shoulder as the source of his pain.

	c.  He did have some mild tenderness to palpation over the proximal biceps tendon and his discomfort was mildly increased with supination against resistance and biceps flexion.

	d. In an addendum, Dr. C stated the applicant underwent an MRI on 3 October 2012 of his right shoulder this showed no obvious bony abnormalities. Essentially the MRI of his right shoulder was unremarkable and he was released to full activities with no restrictions and whatever endeavors he would like to participate in the future.

16.  A Radiology Report, dated 3 October 2012, show the MRI of his right shoulder was unremarkable.

17.  The applicant provided a letter, 8 October 2012, from Dr. A who states, in effect:

	a.  The applicant had a superior labrum tear (anterior to posterior) in May 2010, which was surgically repaired, and he was cleared by his orthopedic surgeon for full activity.  

	b.  A month ago he was participating in a march and swung his rucksack onto his shoulder.  He had some pain and was examined by a physician.  Because of his surgical history he was deemed "unfit for service" and discharged.  There was no imaging done after this injury.

	c.  Dr. A thinks this was a hasty diagnosis with no medical reasoning to support it.  He was examined by his orthopedic surgeon and his recent MRI had been reviewed by the surgeon and himself and neither one of them could find any evidence of re-injury.  Dr. A thinks that, based on the mechanism of injury and the symptoms, the applicant sprained his shoulder in the process of lifting his rucksack.  This was not related to his 2010 injury.  He should not have been discharged and was cleared for any future activity or service.

18.  The applicant provided a letter, dated 10 October 2012, from Dr. C, orthopedic surgeon who states, in effect::

	a.  The applicant had been under his care for right shoulder issues.  He underwent a right shoulder MRI on 3 October 2012.  The MRI of his right shoulder was normal.

	b.  The applicant has no restrictions or limitations secondary to his previous shoulder surgery.  There are no activity restrictions for him.  He is only to return to the clinic as needed.

19.  Army Regulation 40-400 assigns responsibilities and provides guidance on patient administration in Army regional medical commands (RMCs) and military treatment facilities (MTFs).

	a.  Paragraph 7-12 (Expeditious discharge) states:

	(1)  Soldiers who are identified within the first 6 months as not meeting the medical procurement standards under Army Regulation 40-501 (Standards of Medical Fitness), chapter 2, may be separated under Army Regulation 635-200.  The Soldier is not referred to the physical evaluation board.  

	(2)  A member will be referred for EPSBD action when there is clinical evidence, written documentation, or patient admission in conjunction with a clinical history that the medical condition, had it been identified, would have precluded the member’s induction or enlistment. This condition must be noted within the initial 180 days and recorded in an official military record (for example, medical/unit records).

	(3)  Soldiers who have entered active duty with a medical waiver for a disqualifying condition will not be separated for that condition unless the condition for which the waiver was granted changes.
	b.  Paragraph 7-12d provides instructions for the preparation of DA Form 4707.  Paragraph 7-12d(8) states 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.

20.  Army Regulation 40-501, chapter 2, prescribes the medical conditions and physical defects which are causes for rejection for appointment, enlistment, and induction into military service.  Chapter 7 (Physical Profiling) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  

	a.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  

	(1)  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  

	(2)  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  

	(3)  Numerical designator "4" indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator "4" does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40.

	b.  To make a profile serial more informative, two modifiers are used: "P" (permanent) and "T" (temporary).  The "T" modifier indicates that the condition necessitating a numerical designator "3" or "4" is considered temporary, the correction or treatment of the condition is medically advisable, and correction will usually result in a higher physical capacity.  In no case will individuals in military status carry a "T" modifier for more than 12 months without positive action being taken either to correct the defect or to effect other appropriate disposition.

21.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) provides eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Table 3-1 provides U.S. Army RE codes.  An RE-3 applies to individuals who are not considered fully qualified for reentry or continued service at the time of separation, but disqualification is waivable.  These individuals are ineligible for enlistment unless a waiver is granted.

22.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 3-9 states a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in an entry-level status.  The glossary defines entry-level status as the first 180 days of continuous active military service.  Chapter 5 provides for separation for the convenience of the government.

	a.  Paragraph 5-1 states personnel being separated under this section will be awarded a character of service of honorable, under honorable conditions, or an entry-level separation.  The characterization of service as under honorable conditions is normally inappropriate for Soldiers separated under the provisions of paragraph 5-11.

	b.  Paragraph 5-11 specifically provides that Soldiers who are not medically qualified under procurement medical fitness standards when accepted for enlistment would be separated.  Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by appropriate military authority within 4 months of the member's initial entrance on active duty which:

 * would have permanently disqualified him or her for entry into military 	service had it been detected at that time
 * does not disqualify him or her for retention in military service under the 	provisions of Army Regulation 40-501, chapter 3

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his injury was service connected and not EPTS.  He states the medical authority that initially treated him did not order proper medical tests to exam his injury and started to immediately process him for separation based on his previous 2010 injury and subsequent surgery.  He further feels his separation was not proper, was egregious, and he still desires to serve in the Army.  

2.  An EPSBD established the applicant complained of right shoulder pain for 1 week after reporting for BCT.  He had a history of injury to his right shoulder two years prior and the pain increased with activity to include lifting heavy objects.  He had decreased motion and decreased motor strength was noted.  The medical authority who examined him indicated that further testing such as x-rays were not necessary.  The EPSBD recommended his separation from the military service.

3.  He contends he was not counseled concerning his rights to counsel or that he could be retained on active duty.  However, his MFR that he authenticated, dated 14 September 2012, specifically stated he waived his right to seek counsel concerning his discharge.  He specifically stated he did not desire legal assistance and that he did not want to remain in the Army.  

4.  The applicant concurred with the EPSBD proceedings and requested discharge from the Army without delay.  Notwithstanding his strong arguments in his personal statement, his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  

5.  He contends his civilian doctors have stated his shoulder injury incurred while on active duty when he lifted his Army gear and was not due to an EPTS condition.  His civilian doctors released him for full activities with no restrictions.  Regardless of his civilian doctors' findings and recommendations, neither doctor was in the position to approve his physical ability or inability for continued military service.  There is no evidence the doctors were able to determine if his shoulder would be able to sustain the rigors of BCT.  Therefore, the evidence he provided is insufficient medical evidence to override the decision by the EPSBD who determined his medical condition EPTS or to make changes to his service medical records.  

6.  By his own admission, he feels if he had been allowed adequate rest and recuperation, he would have successfully completed training.  While his sincerity is not questioned, at the time of his enlistment when he had the opportunity to make such a request, he chose discharge.  Because he completed only 35 days of active service, he was in an entry-level status.  Therefore, the characterization of his service is correct.  An uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service.  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.  

7.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  The reason for his separation was appropriate considering all the facts of the case.  Therefore, the assignment of the SPD code "JFW" and RE code "3" is correct.

8.  In view of the foregoing, there is insufficient evidence to grant the applicant's request.  Concerning his desire to serve in the Armed Forces with a waiver, he should speak with an Armed Forces recruiter.  

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)                                         AR20140013760



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ABCMR Record of Proceedings (cont)                                         AR20140013760



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