MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 23 August 2001
         DOCKET NUMBER: AR2001056785

         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.

Mr. Carl W. S. Chun		Director
Mr. Lee Cates		Analyst

The following members, a quorum, were present:

Mr. John H. Kern		Chairperson
Ms. Paula Mokulis		Member
Mr. Thomas Lanyi		Member

         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)

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APPLICANT REQUESTS: That his records be corrected to show he was honorably discharged based on a physical disability.

APPLICANT STATES: That he was checked out by the MEPS (Military Entrance Processing Station) and his personal doctor and did not have a hernia when he enlisted in the Army. The Army doesn’t want to take responsibility for his injury. He provides a copy of a letter from his doctor which indicates the applicant was examined on 16 March 2001 for pain at the medial aspect of a previous right inguinal hernia incision and that he now has a small incisional hernia. When he left for military service he did not have this incisional hernia. When examined at the induction center, for military service, he did not have the incisional hernia. He has been examined since being on military status and has not had an incisional hernia. (sic) He respectfully requests that the military address the issue of the applicant having developed the incisional hernia while on military duty.

COUNSEL CONTENDS: Counsel is silent on the issues.

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

On 19 September 2000, Standard Form 88 (Report of Medical Examination) indicates, in pertinent part, that item 31 of the clinical evaluation portion was annotated that he had a 5 centimeter scar and a right inguinal area status/post hernia repair with mesh.

During the period 27 January to 7 February 2001 (10 days), he was in the Army Reserve Delayed Enlistment Program.

On 8 February 2001, he enlisted in the Regular Army for 3 years.

During the period 14 to 26 March 2001 (13 days), he was in excess leave status.

On 26 March 2001, he was discharged from the Army with uncharacterized service based on his failure to meet procurement medical fitness standards. His DD Form 214 (Certificate of Release or Discharge from Active Duty) indicates he had 1 month and 19 days of creditable service. There is no separation packet on file containing the specific facts and circumstances surrounding his discharge processing.

Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. Paragraph 5-11 specifically provides that soldiers who are not medically qualified under procurement medical fitness standards, when accepted for enlistment, or who become medically disqualified under these standards prior to entry on active duty or during active duty training, will be separated. A medical proceeding, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within 6 months of the soldier’s initial entrance on active duty, that the condition would have permanently or temporarily disqualified the soldier for entry into the military service had it been detected at that time, and that the medical condition does not disqualify the soldier from retention in the service under the provisions of Army Regulation 40-501, chapter 3. This chapter gives the various medical conditions and physical defects which may render a soldier unfit for further military service and which fall below the standards for enlistment.

By regulation, the characterization of service for soldiers separated under this provision of the regulation will be uncharacterized if the soldier is in an entry-level status. Army regulations confirm that a member is in an entry-level status if the soldier has not completed more than 180 days of creditable continuous active duty prior to the initiation of separation action.

This Board operates under the standard of presumption of regularity in governmental affairs. The standard states, in effect, that in the absence of evidence to the contrary, the Board must presume that all actions taken by the military were proper. There is nothing in the records or in the evidence submitted by the applicant that overcomes this presumption.

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. By regulation, any individual who has served for less than 180 days at the time separation action is initiated, and is not being separated for misconduct, will be given an uncharacterized discharge. The evidence of record confirms that the applicant was separated after completing just over 1 month of active military service and therefore, his uncharacterized discharge was appropriate.

2. There is no separation packet on file containing the specific facts and circumstances surrounding the applicant’s separation processing, however, there is a properly constituted DD Form 214 on file. This document confirms that he was discharged under the provisions of paragraph 5-11, Army Regulation 635-200 for failure to meet procurement medical fitness standards.

3. In connection with such a separation, a medical proceeding must establish that a medical condition was identified by appropriate medical authority within 6 months of the soldier’s initial entrance on active duty, that the condition would have permanently or temporarily disqualified the soldier for entry into the military service had it been detected at that time, and the medical condition does not disqualify the soldier from retention in the service. The regulation mandates that the characterization of service for members separating for this reason who are in an entry level status will be uncharacterized.

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4. Contrary to the applicant’s allegation that he did not have a hernia at the time of enlistment, the medical evidence shows he had one, which had been repaired. There is no evidence of record and none has been presented that he developed an incisional hernia while on military duty.

5. In the absence of information to the contrary, the Board is satisfied that all requirements of law and regulation were met, the rights of the applicant were fully protected throughout the separation process, and it presumes government regularity in the discharge process.

6. 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 this requirement.

7. 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

_pm_____ jhk____ _tl_____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001056785
SUFFIX
RECON
DATE BOARDED	20010823
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	131
2.
3.
4.
5.
6.