IN THE CASE OF: BOARD DATE: 4 November 2010 DOCKET NUMBER: AR20100014295 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 an upgrade of her uncharacterized discharge to an honorable discharge and correction of the narrative reason for her separation from "entry level status performance and conduct" to "medical." 2. The applicant states while at Fort Dix, NJ, she was diagnosed with a pelvic stress fracture, and after 30 days of convalescent leave she was placed on medical hold in her training company. Her drill sergeant instructed her to lie to medical personnel and tell them she was OK in order to get her physical profile released so she would be able to graduate from basic training. At the time, she only had to finish three more events/items to graduate, one of which was the Army Physical Fitness Test (APFT). As she was unable to run, she failed her APFT. She asked her drill sergeant to go on sick call but he told her to suck it up. She was given two more opportunities to pass her APFT but she failed. Accordingly, her captain discharged her. She did not want to fight this decision because one of the drill sergeants had made sexual advances toward her and even kissed her. 3. She also states she feels she should be given an honorable discharge because of the physical pain and suffering as well as emotional stress she encountered. She also believes she should have received further medical attention as she had suffered from pain in her pelvic area since 1991. This pain caused her to seek administrative positions as a result of not being able to stand on her feet for lengthy periods of time. 4. She further states that she joined the Kansas Army National Guard (KSARNG) in 1995 and this time her pelvic stress fracture flared up. Within 2 weeks, she was placed on a physical profile. Some drill sergeants were professionals while others tried to humiliate her by making her run despite the physical profile. It was so bad that some Soldiers in a similar situation attempted suicide. Due to her pain, she took Ibuprofen pills, which was viewed as a suicide attempt. She was sent to a psychiatrist and ultimately discharged. 5. The applicant provides: * DD Forms 214 (Certificate of Release or Discharge from Active Duty), dated 10 September 1991 and 7 February 1995 * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 6 February 1995 * Resume * Birth certificate and social security card 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 records show she enlisted in the U.S. Army Reserve (USAR) on 23 May 1991. She subsequently entered active duty for training (ADT) on 30 May 1991 and she was initially assigned to Company B, 1st Battalion, 26th Infantry, Fort Dix, NJ, for completion of basic combat training (BCT). 3. On 18 June 1991, she complained of left ankle pain and she was subsequently seen at the post hospital where she was prescribed pain medication. However, her pain persisted and she was accordingly placed on a 30-day physical profile that restricted her from marching, running, or physical activities. 4. Subsequent to the medical profile and a period of convalescent leave, she was reassigned to Company D, 42nd Adjutant General Battalion, Fort Dix, NJ, for completion of BCT. 5. On 20 August 1991, she was again placed on a physical profile for a period of 21 days but her profile stated she could march at her own pace and could run the 2-mile event of the APFT. This was followed by another visit to the hospital on 26 August 1991 wherein the attending physician stated "may return to full duty." 6. Her service records reveal a history of negative counseling as follows: * On 29 August 1991, by her platoon sergeant, for failing to pass the APFT, negative attitude, and substandard performance * On 3 September 1991, by her drill sergeant, for lack of motivation and disobeying a lawful order * On 4 September 1991, by her platoon sergeant, for lack of motivation or maturity to complete BCT, negative attitude, and substandard performance * On 4 September 1991, by her company commander, for her lack of desire or motivation to succeed * On 5 September 1991, by her drill sergeant, for failing to pass the APFT 7. On 6 September 1991, the applicant's immediate commander notified the applicant of her intent to initiate separation action against her under the provisions of chapter 11 of Army Regulation 635-200 (Personnel Separations). The immediate commander remarked that the applicant was on a physical profile several times but that did not restrict her from training because she was allowed to run at her own pace. However, she stated she wanted out of the Army and that further training would not help her pass the final criteria to graduate from BCT. The immediate commander recommended an entry level separation. 8. On 6 September 1991, she acknowledged receipt of the separation notification memorandum and indicated she understood if the recommended action was approved, she would receive an entry level separation with uncharacterized service. She also waived consulting with counsel, elected not to submit a statement on her own behalf, and by separate memorandum, she indicated she did not desire a separation medical examination. 9. On 6 September 1991, her immediate commander initiated separation action against her under the provisions of chapter 11 of Army Regulation 635-200 with an entry level performance and conduct. The immediate commander remarked that further active duty was inappropriate because rehabilitation would not have produced the quality Soldier desired by the Army. 10. On 9 September 1991, the separation authority approved the applicant's release from ADT and discharge from the Army and directed she receive an uncharacterized character of service. Accordingly, the applicant was discharged on 10 September 1991. The DD Form 214 she was issued confirms she was discharged from active duty by reason of entry level status performance and conduct in accordance with Army Regulation 635-200, chapter 11, with an uncharacterized character of service. This form also shows she completed 3 months and 11 days of creditable active military service. 11. The facts and circumstances surrounding her subsequent enlistment in and discharge from the KSARNG are not available for review with this case. However, she provided copies of her NGB Form 22, dated 6 February 1995 and DD Form 214, dated 7 February 1995 that show the following: * She enlisted in the ARNG on 28 September 1994 and was assigned to C Company, 169th Support Battalion, Lenexa, KS * She entered ADT on 3 January 1995 and was assigned to Company A, 3rd Battalion, 13th Infantry, Fort Jackson, SC for completion of BCT * She was discharged from the ARNG on 6 February 1995 in accordance with paragraph 8-26N of NG Regulation (NGR) 600-200 (Enlisted Personnel Management) with an uncharacterized discharge * She was released from ADT and discharged from the Army on 7 February 1995, under the provisions of chapter 11 of Army Regulation 635-200 with an uncharacterized discharge, after having completed 1 month and 5 days of creditable active service 12. On 11 January 1996, the Army Discharge Review Board determined her discharge was proper and equitable and denied her petition for an upgrade of her discharge 13. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 11 of this regulation sets policy and provides guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in entry level status. It states in pertinent part that when separation of a member in entry level status is warranted by unsatisfactory performance or minor disciplinary infractions (or both) as evidenced by inability, lack of reasonable effort, or failure to adapt to the military environment, the member normally will be separated per this chapter. This separation policy applies to enlisted members of the Regular Army, who have completed no more than 180 days active duty on current enlistment by the date of separation, have demonstrated that they are not qualified for retention for one or more of the following reasons: Cannot or will not adapt socially or emotionally to military life; cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline; have demonstrated character and behavior characteristics not compatible with satisfactory continued service; or failed to respond to counseling. 14. Chapter 3 of this regulation describes the different types of characterization of service. It states in: a. paragraph 3-7a, 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. b. paragraph 3-7b, a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. paragraph 3-9, an uncharacterized separation is an entry-level separation. A separation will be described as an entry-level separation if processing is initiated while a member is in entry-level status, except when characterization under other than honorable condition is authorized under the reason for separation and is warranted by the circumstances of the case or when 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. 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 in service of more than 92 days of active military service. 15. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and 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. It provides for medical evaluation boards (MEB), which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness). If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB). 16. Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Once a determination of physical unfitness is made, the PEB rates all disabilities using the Veteran's Affairs Schedule for Rating Disabilities. 17. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent. 18. NGR 600-200 governs procedures covering enlisted personnel management of the ARNG. Chapter 8 provides for reasons for separation from the ARNG. Paragraph 8-26n provides that individuals can be separated for entry level status and conduct. The service of Soldiers discharged from the ARNG will be characterized as honorable or under honorable conditions unless an entry level discharge is appropriate. This regulation also states: a. An honorable characterization is appropriate when the quality of the Soldier'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. b. A general, under honorable conditions characterization is awarded to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. Characterization of service as general (under honorable conditions) is warranted when significant negative aspect of the Soldier's conduct or performance of duty outweighs positive aspects of his/her military record. c. Service will be described as uncharacterized if separation processing is initiated while a Soldier is in an entry level status except when characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case; or the Secretary of the Army, or the Secretary's designated representative, 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 military duty. DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows she entered ADT on 30 May 1991 and subsequently sustained a routine medical condition. She was placed on a restrictive physical profile and was reassigned to another training unit for completion of BCT. 2. The evidence of record further shows she failed her APFT on multiple occasions. She was counseled regarding her lack of motivation, adaptability, ability, and/or attitude to become a productive Soldier and the need to meet Army standards but did not respond to counseling and indicated she wanted out of the Army. Accordingly, her chain of command initiated separation action against her. After having been appropriately counseled, she consented to this discharge and was discharged accordingly with an uncharacterized characterization of service. 3. 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 is approved by the Secretary of the Army. 4. The entry-level separation is given regardless of the reason for separation. This uncharacterized discharge 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. She received the appropriate character of service and she has provided no evidence to show it is in error or unjust. Therefore, there is no basis for granting his requested relief. 5. The evidence of record confirms her narrative reason for separation was assigned based on the fact that she was discharged under the provisions of chapter 11 of Army Regulation 635-200, entry-level status performance and conduct. The underlying reason for her discharge was her unacceptable entry-level performance and conduct. Absent her unacceptable performance and conduct, there was no fundamental reason to process her for separation. The only valid narrative reason for separation permitted under this paragraph is "entry-level performance and conduct." 6. The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating. The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated. 7. The applicant was not exempt from taking an APFT and she was cleared for duty by an attending physician. Additionally, she was afforded an opportunity to undergo a separation medical examination but waived her right to undergo such examination. There is no evidence in her records and she did not provide any evidence that shows she was physically unfit at the time of her separation. 8. In view of the foregoing evidence, she 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) AR20100014295 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100014295 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1