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Can my son be discharged (ELS) for an issue where he had a specific medical waiver prior entering, if he is performing well?

Orlando, FL |
Filed under: Military law

My son is in Army BCT, close to graduation. He is performing well and loves it. Has wanted to be in the Army. Has completed 100% of training, passing everything. Strong fitness scores.

He had a childhood injury to his hand that prevents him from rendering a perfect salute. His pinky finger will not pull in beside his ring finger. This issue was assessed exhaustively prior to entering service and he received a USAREC Medical Waiver.

He was confronted him early and sent him to the Docs. Docs said no medical or convenience of the government discharge for pre-existing condition (Chapter 5) because the condition was known and he has a waiver. SO, one Drill Sergeant has threatened Chap 11.

If he is performing well (except salute) and wants to stay, will they have grounds?

Attorney Answers 3


  1. Best answer

    Whether or not the person is considered "fit" to proceed to the next training AIT, is a command decision. That's not something one drill sergeant has control over. The Army has invested money in your son and made a decision to allow him in at a time of reduced manning.
    In my view he doesn't qualify for a failure to adapt if that is the sole reason they want to separate him. The Army has already agreed that no matter how much effort he puts in, his physical inability won't change. Again, they agreed to let him in.
    So long as that is the ONLY reason why he might be considered for separation, he should be OK.

    mljucmj@gmail.com 703-298-9562, 800-401-1583. Answering your question does not create an attorney-client relationship.


  2. Agree with attorney Cave.

    I would add that frequently families do not get the whole story from servicemembers at bootcamp, for lots of reasons. If your son is discharged on an ELS, it will likely be on other grounds or circumstances as yet not communicated to you.

    Based on what you posted, I would expect him to continue and graduate with no worries.

    Sounds like he's doing fine.

    READ THIS BEFORE CALLING OR EMAILING ME: I am licensed to practice before the state and federal courts in Virginia. We have not established an attorney-client relationship unless we have a signed representation agreement and you have paid me. I give a 100% effort to get you on the right track with your issue. Sometimes that means legal educational information, sometimes that means counseling and non-legal guidance. You should speak with an attorney to whom you have provided all the facts, before you take steps that may impact your legal rights. I am not obligated to answer subsequent emails or phone calls unless you have hired me. I wish you the best of luck with your situation.


  3. As I understand the information you provided, your son already has a waiver and was screened by a medical review board. A drill instructor won't have the authority to over-ride such a waiver but can make reports and recommendations about his performance.

    As a veteran myself, I remember well how the drill instructors used any fact about my background or certain issues I might have had during basic training to 'test' my resolve or to see if they could make me crack under pressure - which of course, I never did (Go Coast Guard!). That's what basic training is all about. A pinky finger that doesn't line up with the rest of the hand for a salute, will certainly make your son stand out and make him a ripe target for the drill instructors to mess with. I expect he will do well and have a great story to tell about this one day.

    However, if in the event, the Army does take some action against him, he'll have to go through the Army's appeal process. Once in the military, a person does not have the same rights as a civilian.

    My answers on Avvo.com are intended to help clarify the legal process in your situation to the extent possible on this website. Criminal law can be very complicated and very serious. Every case is different and my answers are not intended to serve as legal advice unless so stated. If you have been charged with a crime you could be placed on probation or face incarceration. Please contact an attorney if you think you need legal advice in a criminal matter.

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