IN THE CASE OF:	  

		BOARD DATE:	  18 June 2015

		DOCKET NUMBER:  AR20140017324 


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, reconsideration of his previous request for a change of his reason for discharge from "Failure to Report to Initial Active Duty Training (IADT)" to "Medical" and a change of his "Uncharacterized" discharge to "Medical/Honorable."

2.  As a new issue, he requests a personal appearance before the Board.

3.  The applicant states, in effect:

   a.  He disagrees with the Board's initial decision regarding his appeal.  He has enclosed three documents that will corroborate his account of his injury and ongoing medical difficulties that eventually led to his separation from the Virginia Army National Guard (VAARNG).  These documents are contemporary and first-hand accounts from primary witnesses to his situation and physical condition.

   b.  The first document is from Sergeant First Class (SFC) Bxxxx, who was his recruiter and served with him in his unit.  SFC Bxxxx was present for each drill and was in constant communication with SFC Txxxxx (personnel) and Captain Pxxxx (their commander).  SFC Bxxxx witnessed the ongoing effect of his foot injury and physical condition.  He agreed with SFC Txxxxx and their commander that he [applicant] would not be able to attend AIT or continue in the ARNG.  All three were of the opinion that a medical discharge was in order and that is what they (and he) fully expected.  SFC Bxxxx was shocked and very disappointed that he [applicant] was given an "Uncharacterized" discharge.  SFC Bxxxx's contact information is included should the Board have any questions for him.
   c.  The second document is from Dr. Kxxx, a podiatrist in Woodstock, VA, where his unit was located.  His unit fully sanctioned and paid for his appointment with Dr. Kxxx while waiting for his appointment/evaluation by a military doctor that was repeatedly declined by the Richmond Military Entrance Processing Station (MEPS).  Dr. Kxxx was the only podiatrist to examine him after his injury. He would have gladly consented to being examined by a military doctor/podiatrist after his return from basic combat training (BCT), but their requests were always declined with the response, "there's no point in seeing him while he's still injured."  This went on for over a year.  Again, it is not his fault that he was not reevaluated by MEPS or a military physician.

   d.  His unit's numerous attempts to schedule an examination were rebuffed each and every time – even when he was due to ship out for AIT.  In his humble opinion their inaction should not be counted against him and his appeal.  Dr. Kxxx has a wealth of knowledge and experience in diagnosing, evaluating, and treating foot injuries – he did so for years in England when dealing with infantrymen in the British Army.  In 2002, it was Dr. Kxxxx's opinion that due to his pronounced and obvious case of genetic foot deformity Pes Cavus, he should not have been approved for the infantry/military service in the first place.  His subsequent injury supports this.  His contact information is provided should the Board wish to communicate with him.

   e.  The third document is from his Primary Care Giver/Chiropractor in Socorro, NM.  Dr. Gxxxxxxx first examined him the year following his release from his VAARNG unit.  In great detail Dr. Gxxxxxx documented and specified his ongoing physical difficulties that were manifested in the months and years after BCT.  Dr. Gxxxxxx has treated numerous military personnel both in the United States as well as Europe.  His contact information is included should the Board have any questions for him.

   f.  He fully hopes the first-hand witness accounts, testimony, and the arguments of these three individuals are enough to prompt the Board to reclassify his discharge from "Uncharacterized" to "Medical/Honorable."  All three are in agreement that he was injured, not sufficiently recovered to attend AIT or to continue in the military, and that his pain and disability were pronounced and ongoing.  He is appealing to the Board for the sole purpose that his service be correctly classified.  He has no desire or intention to request treatment or compensation from the military or the Department of Veterans Affairs.  He now freely and permanently waives his rights to any benefits or compensation that may be due him if he is granted a Medical/Honorable discharge.  All he is 


requesting is that his service be properly characterized as in accordance with all the documents and testimony he has provided.

   g.  He is willing to fly to Washington, DC, at his own expense in order to appear in person before the Board, if that will aid his appeal.  This is purely a matter of honor for him and the proper classification of his service is his one and only goal and desire.

4.  The applicant provides copies of a letter from the Army Board for Correction of Military Records (ABCMR) and three support letters.

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 ABCMR in Docket Number AR20130003313 on 3 December 2013.

2.  The applicant provides copies of three support letters.  This is new evidence and will be considered by the Board.

3.  His military records show he enlisted in the VAARNG on 3 January 2002 for 6 years.  His record is void of his entry date for active duty for the purpose of training. 

4.  His records contain Standard Forms (SF) 600 (Health Record – Chronological Record of Medical Care), which show he was treated at the Family Practice Clinic, Martin Army Community Hospital (MACH), Fort Benning, GA on the following dates:

   a.  In July 2002, for pain in the top of his toes and outside of his right foot for the past 3 days.

   b.  On 11 July 2002, for pain in his right foot for the past 7 days.

   c.  On 24 July 2002, for pain in his right and left foot for the past 2 weeks.  It was also noted that he had completed a road march and final Army Physical Fitness Test for ARNG basic training.  He was diagnosed with a stress fracture of the right foot, fourth metatarsal.  He was assigned a profile with limitations for prolonged standing/walking.  He was cleared for return to his home station.  
   
   
   
   d.  A DD Form 689 (Individual Sick Slip), dated 24 July 2002, which shows he had a stress fracture of the right foot and was prohibited from running, jumping, marching, or prolonged standing and walking.  He was to return to his home station and was instructed to continue care for a stress fracture.

   e.  A memorandum, dated 25 July 2002, Medical Treatment Letter of Instruction, wherein he was advised of the following:

		(1)  After the expiration of his active duty training, Full-Time Training Duty, or IADT he was in a patient status but not on active duty.

		(2)  He had been diagnosed as having Bilateral Stress Fractures Metatarsal.

		(3)  His injury/disease was first treated at MACH, Fort Benning, on 11 July 2002.  

		(4)  Responsibility for his medical treatment had been transferred to the nearest military medical facility to his home.  His next appointment for medical evaluation would be coordinated by his unit.

   f.  An U.S. Army Infantry School Diploma, dated 26 July 2002, which shows he successfully completed the Individual BCT from 3 June to 26 July 2002.

5.  He was released from active duty on 26 July 2002.

6.  His records also contain the following:

   a.  A DA Form 2823 (Sworn Statement), dated 6 August 2002, wherein he stated on 3 July 2002 while in BCT he injured his right foot.  The injury occurred around the second mile of a ten-mile road march.  After several days the pain had not subsided and he went on sick call.  He was diagnosed with a stress fracture of his fourth metatarsal, stress on the second metatarsal, and a bone spur of his right heel.  He was placed on a profile and crutches for approximately twelve days.  He had to complete and pass his final annual training test and a twelve-mile march in order to graduate from BCT.  He returned to the doctor and informed the doctor that he felt well enough to attempt the Army physical fitness training test and road march.  He received both tests on 18 July (2002) and immediately afterward the pain returned to his right foot.  He was reexamined by the doctor and was placed on a 30-day profile on or about 24 July (2002) and received clearance.


   b.  A memorandum, dated 6 August 2002, subject:  Medical Care for (Applicant's Name), wherein medical care was requested for him and his personnel administrative information was provided.
   
   c.  An SF 600 which shows on 7 August 2002 he was seen and received treatment at the Family Health Center, Fort Belvoir, VA, for right foot pain.  The form noted he had sustained a stress fracture on 3 July 2002 and received treatment.

   d.  A letter, dated 6 September 2002, wherein he stated the following:

		(1)  He initially suffered a stress fracture of his right foot (fourth metatarsal) during a ten-mile road march while in BCT at Fort Benning on 3 July 2002.  He was examined at the MACH and two weeks later he was cleared to return to duty.  On 18 July 2002, he reinjured his right foot while completing a twelve-mile road march.  He was seen at the clinic and (diagnosed) as having a non-displaced fracture of his right fourth metatarsal, a stress fracture of his second right metatarsal, and a bone spur on his right heel.  He was placed on crutches with a soft-shoe profile.  On 26 July 2002, he was cleared to leave Fort Benning upon completion of BCT.  He obtained a line of duty and was instructed to deliver it to his home unit. 

		(2)  On 29 July 2002, he reported to the Woodstock Armory and an initial examination appointment was scheduled for him at Fort Belvoir on 7 August (2002).  At Fort Belvoir he was examined, x-rayed, and received a profile extending his 2-week profile to thirty days.  He was also given a removable foot cast.

		(3)  As of today, his foot pain has not decreased despite rest and medication.  The pain was just as bad as it was during his last week at Fort Benning.  He is also experiencing pain in his left foot.  He was unable to walk or stand for even short periods of time without pain.  He was awakened at night with pain in his feet.  The prescribed medications were not having a noticeable positive effect.

   e.  A letter, dated 27 September 2002, wherein a civilian podiatrist (Dr. Kxxx) advised the VAARNG of the following:

		(1)  He initially saw the applicant on 26 September 2002 when his chief complaint was pain in his right foot and other painful areas of his feet.  The applicant stated that he had originally sustained a stress fracture to his right fourth metatarsal on 3 July 2002 when he was on a (road) march.  The applicant was returned to duty 15 days later and sustained another stress fracture to his right fourth metatarsal.  X-rays were taken and the following treatments were recommended for the applicant:

* rest and heat 30-40 minutes, 3 times per day
* gastrocnermius stretching exercise
* discontinue marching and running no more than a few hundred yards
* custom-molded functional orthoses – these were essential for his foot type

7.  His record is void of the complete facts and circumstances surrounding his discharge; however, his records contain the following:

   a.  Orders Number 007-103, issued by The Adjutant General (TAG), VAARNG on 7 January 2004, discharging him the VAARNG, effective 
12 January 2004, with an "Uncharacterized" discharge under the provisions of National Guard Regulation (NGR) 600-200 (Personnel General – Enlisted Personnel Management), paragraph 8-26n.

   b.  A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) which show he was discharged on 12 January 2004, in pay grade E-4.  He was credited with completing 2 years and 10 days of net service.  His NGB Form 22 lists in:

* Item 18 (Remarks) – Individual was discharged without personal notice in accordance with NGR 600-200, NGB Form 22 was mailed to the address shown in item 19 (Mailing Address After Separation)
* Item 23 (Authority and Reason) – Paragraph 8-26n, NGR 600-200, Failure to Report to IADT Phase I or II
* Item 24 (Character of Service) – Uncharacterized

   c.  A Memorandum for Record, undated, shows TAG, VAARNG, disapproved the applicant's request for a change of his characterization of service and reason for separation.  He directed the applicant's existing character of service of "Uncharacterized" and the reason for separation, failure to report to IADT Phase I or II, remain in the applicant's file.

   d.  A letter, dated 3 June 2004, wherein the Deputy Chief of Staff, Personnel, VAARNG, advised the applicant of his separation from the VAARNG in accordance with NGRs and he was provided copies of his discharge orders and NGB Form 22.



8.  He provided copies of the following:
   
   a.  A letter, dated 3 January 2013, wherein a civilian chiropractor, Dr. Gxxxxx, stated the applicant was a long-time supportive patient in that office who initially presented himself on 6 July 2005 with severe complaints of upper and lower back, chest and head pain, tingling and numbness, rapid heart rate, irregularity, loss of sleep, elevated and asymmetrical blood pressure, lower trunk neuralgia, and a chronic foot abnormality of genetic origin aggravated by increased exercise and daily chores involving excessive twisting and bending.  The applicant was evaluated and diagnosed with spinal subluxation complex including curvature; disc compression of the C5/6 level, L1/2 level, and L5/S1 level including lumbar disc arthritis/degeneration, and aberrant weight bearing.  

   b.  A letter, dated 14 December 2013, wherein SFC Bxxxx stated the applicant attended and completed BCT.  Upon the applicant's return to the unit from BCT, he sat down with the applicant and learned the applicant was injured when he walked in the door with a limp stating that his feet were killing him.  The applicant left for BCT in perfect health and returned injured.  The applicant was never returned to the MEPS for reevaluation to determine whether he could attend AIT or if he had a medical issue that prevented him from attending AIT.  The applicant was seen by a local doctor for an opinion and the doctor stated the applicant should not march or run.  He and the applicant were advised by the applicant's home unit that the applicant was going to be medically discharged.  He found out years later that this is not what happened.  The applicant's service is "Uncharacterized."  The applicant should be commended for wanting to enlist and serve his country on his own accord.  He should not have been lied to and treated unjustly because of medical issues completely beyond his control.

   c.  A letter, dated 12 September 2014, wherein a civilian podiatrist, Dr. Kxxx, stated he had once again reviewed the applicant's medical records from 26 September 2002.  He wanted to emphasize his initial prognosis which was poor as far as infantry capabilities were concerned as the applicant had very little shock absorption with his foot type, i.e., Pes Cavus.  There was a great probability of re-injury had the applicant returned to active duty.

9.  NGR 600-200, in effect at the time, governed procedures for enlisted personnel of the ARNG.  Paragraph 8-26 covers reasons, applicability, codes, 
and board requirements for administrative discharges from the Reserve of the Army and/or the State ARNG.  The regulation provided for the discharge of Soldiers who were not medically qualified under procurement medical fitness standards.  Paragraph 8-26n provided for the separation of personnel who were failed to report to active duty when ordered.  It also stated to refer to Army Regulation 135-178 (ARNG and Army Reserve Enlisted Administrative Separations), chapter 12.

10.  Army Regulation 135-178, in effect at the time, established the policies, standard, and procedures governing the administrative separation of enlisted Soldiers from the Reserve Components.  The regulation stated in:

   a.  Paragraph 2-11 - entry level status service would be described as uncharacterized if separation processing was initiated while a Soldier is in an entry level status.  The Glossary of Terms defined entry level status for ARNG and U.S. Army Reserve (USAR) Soldiers and stated that entry level status began upon enlistment in the ARNG or USAR.  For Soldiers ordered to IADT for the split or alternate training option, it terminated 90 days after beginning Phase II of AIT. Soldiers completing Phase I remain in entry level status until 90 days after beginning Phase II of AIT.

   b.  Chapter 12 provided guidance for the separation of Soldiers who were medically unfit for retention.  Separation would be accomplished by separation authorities when it had been determined that an enlisted Soldier was no longer qualified for retention by reason of medical unfitness unless the Soldier requested and was granted a waiver or eligible for transfer to the Retired Reserve. 

11.  Army Regulation 601-25 (Delay in Reporting for Exemption from Active Duty, IADT, and Reserve Forces Duty), in effect at the time, prescribed policies and procedures for requesting and granting delays in and exemptions from entry on active duty for certain categories of officers and enlisted personnel.  The regulation stated:

   a.  When a member of the alternate training program was medically disqualified after completing Phase I BCT but before entering Phase II of IADT, the following procedures would apply:  

        (1)  Members who were temporarily medically disqualified would be delayed from AIT as prescribed in chapter 5 (Peacetime Medical Fitness Procedures).  

		(2)  Members with medical disqualifications curable within less than 6 months would be retained in the unit and granted excused absence from unit training.  The unit commander would notify the appropriate MEPS to cancel the current Phase II training reservation.  A new training reservation would be made within 10 days after the individual was found qualified for duty.  Temporarily disqualified members of the ARNG would be assigned per current National Guard directives.  
   
   b.  The unit commander would initiate action to have members discharged who were found permanently medically disqualified under procurement standards.

12.  Army Regulation 40-501 (Standards of Medical Fitness), in effect at the time, governed medical fitness standards for enlistment, retention and separation.  Stress fracture was not listed as an injury that would make an individual unfit because of physical disability.

13.  Army Regulation 15-185 (ABCMR), paragraph 2-11, states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing (personal appearance) whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  With regard to the applicant's request for a change of his reason for discharge from "Failure to Report to IADT to "Medical":

   a.  His record is void of the complete facts and circumstances surrounding his discharge; however, the available evidence shows while on active duty for BCT he sustained a bilateral metatarsal stress fracture during a road march and received medical treatment.  However, he provided a document saying he had a pronounced and obvious case of genetic foot deformity.  He completed BCT and was medically cleared to return his home unit.  He was released from active duty on 26 July 2002.

   b.  Upon return to his unit he received treatment at a medical military facility for this injury and his profile was extended to 30 days.  He was subsequently seen and received treatment from a civilian podiatrist who recommended several treatments for the injury to include the discontinuance of marching and running for any more than a few hundred yards.

   c.  The VAARNG published orders discharging him for failure to report to IADT Phase I or II, with uncharacterized service.  He was discharged accordingly on 12 January 2004.  The NGB Form 22 issued indicated he was discharged without personal notice.  He was mailed copies of his discharge orders and an NGB Form 22.
   
   d.  There is no available evidence showing he was medically qualified and his commander believed he was medically qualified for further military training.  Without evidence to the contrary and the TAG's denial of his request for a change of his reason and characterization of service it appears he did not meet the criteria for a medical discharge.

   e.  By regulations, separation would be accomplished by separation authorities when it had been determined that an enlisted Soldier was no longer qualified for retention by reason of medical unfitness unless the Soldier requested and was granted a waiver or eligible for transfer to the Retired Reserve. 

   f.  Without evidence, it appears that all requirements of law and regulations were met and the applicant's rights were fully protected throughout the separation process.  The current entry in item 23 of his NGB Form 22 appears to be appropriate considering all of the facts and circumstances of his discharge.  There is no error or unjust and no further correction is required.

2.  With regard to a changing his "Uncharacterized" service/discharge to "Medical/Honorable":

   a.  By regulation, ARNG Soldiers ordered to IADT for the split or alternate training option, entry-level status would be terminated 90 days after beginning Phase II of AIT.  Soldiers completing Phase I remained in an entry level status until 90 days after beginning Phase II of AIT.  

   b.  There is no evidence and he provided none showing he began Phase I or II of AIT prior to his discharge from the VAARNG.  Therefore, he remained in an entry-level status until his discharge.  Entry level status service would be described as "Uncharacterized" if separation processing was initiated while a Soldier is in an entry level status.  

   c.  There is no evidence to support that he suffered a disabling condition(s) at the time that would have supported processing him for a medical discharge through medical channels.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to a change of his character of service to medical.

   d.  Entry level status means a Soldier has not performed his duties long enough for his character of service to be rated as honorable or otherwise.  It was and still is not meant to be a negative reflection on a Soldier's military service.  He did not complete AIT for award of a military occupational special (MOS) and perform the duties related to that MOS.  Therefore, he is not entitled to a change in the characterization of his service from uncharacterized to honorable.

3.  With regard to his request for a personal appearance before the Board, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not warranted to serve the interest of equity and justice in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 Docket Number AR20130003313, dated 3 December 2013.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to a personal appearance before the Board.



      _______ _   _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)                                         AR20140017324



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ABCMR Record of Proceedings (cont)                                         AR20140017324



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