MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:	BOARD DATE:             26 August 1998                 
	DOCKET NUMBER:     AC97-09310

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  The following members, a quorum, were present:



Analyst

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                             records
	Exhibit B -  Military Personnel Records (including
	                  advisory opinion, if any)

APPLICANT REQUESTS:  In effect that his uncharacterized service be upgraded to honorable.

APPLICANT STATES:  In effect, that the city of Memphis considers him ineligible for employment until his service is characterized.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant entered the Regular Army on 10 September 1988 for a period of
4 years at the age of 18.  

The applicant’s record indicates that the highest grade he held on active duty was private/E-2 and documents no acts of valor, achievement, or service warranting special recognition.

On 30 September 1988, while in his fourth week of basic training, the applicant was admitted to the Moncrief Community Hospital, Fort Jackson, South Carolina after suffering a training injury.  His injury was diagnosed as a recurrent dislocated patella.

On 21 November 1988 a Medical Evaluation Board (MEB) convened at Fort Jackson, South Carolina to evaluate the applicant’s medical condition.  After consideration of clinical records, laboratory findings, and physical examination, the MEB found that the applicant suffered from the following condition:  recurrent dislocated patella (paragraph 3-3b(1), AR 40-501).  The MEB recommended that the applicant’s case be referred to a Physical Evaluation Board (PEB).  In the MEB proceedings the applicant expressed his desire not to continue on active duty and concurred with the approved findings and recommendations of the MEB.

On 29 November 1988 a PEB convened and considered the applicant’s case.  The PEB found that the applicant had activity limitations imposed by a permanent profile which precluded adequate performance of the normal duties associated with his office, grade, rank or rating.  Accordingly, the PEB determined the applicant was unfit for further military service in the rank of private/E-1 with a military occupational specialty (MOS) of 35R.  The applicant was advised to contact a Department of Veterans Affairs counselor to learn about available benefits given his service-connected medical condition.  The approved findings of the PEB board were that the applicant was physically unfit and they recommended a combined rating of 10 %, and that the applicant be separated from the service with severance pay.  Accordingly, 28 December 1988 the applicant was discharged under the provisions of AR 635-40 for physical disability with severance pay with uncharacterized service.
This type of discharge simply means that a soldier was in an entry level status, i.e., in an initial probationary period of service.  Any individual who has served for less than l80 days at the time separation action is initiated, and is not being separated for serious misconduct, will be given an uncharacterized discharge.  This is not an adverse separation action and denotes only that the individual had less than l80 days on active duty.  

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.  Army Regulation 635-40, paragraph 4-24e (3), in effect at the time, provided that the Army Personnel Command would accomplish necessary actions to separate members found unfit by a PEB by publishing orders and issuing proper instructions to subordinate commands to accomplish separation with severance pay under the provisions of Title 10 of the United States Code, paragraph 1203 or 1206.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The Board noted the applicant’s contention that the city of Memphis considers him ineligible for employment.  However, this issue is not a matter on which the Board would grant a change in discharge because it raises no matter of fact, law, procedure, or discretion relating to the discharge process nor is it associated with the discharge at the time of issuance.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service.

2.  The Board noted from the evidence of record that the applicant received an uncharacterized separation while in an entry level status (ELS).  The separation authority approved the applicant's discharge as entry level status, with the description of service as uncharacterized.  A soldier is in entry level status for the first 180 days of continuous active duty.  The purpose of the entry level status is to provide the soldier a probationary period.  An honorable discharge is rarely ever granted for an ELS.  A fully honorable discharge may be granted only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.  The Board determined that no such unusual circumstances were present in the applicant’s record and his service did not warrant an honorable discharge.



3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION




						Loren G. Harrell
						Director