PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 19 August 2003
         DOCKET NUMBER: AR2003087724


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Margaret V. Thompson		Member
Mr. John T. Meixel		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

---

2. The applicant requests that his administrative discharge be changed to a medical discharge and that he be awarded all service medals due him.

3. The applicant states that at the time he just wanted to be discharged as he had had enough of the constant harassment and poor treatment from many of his superiors because he was unable to perform his normal duties. The type of discharge was not really a concern of his because he was led to believe he would be receiving an honorable discharge for medical reasons. The Memorandum of Consideration (AR2002070596) stating that this type of discharge (chapter 11, Army Regulation 635-200) is for recruits who simply cannot adapt to military life. That definition did not accurately describe him nor did it apply to his situation. He was not some homesick kid who decided he wanted to go home after a few weeks of training. He was a good soldier until the day he herniated three discs in his back while performing kitchen police duty. After a stint of bed rest, he was returned to normal duty. While on light duty he received daily physical therapy until he was cleared to return to normal duty but almost immediately the herniated discs would be re-aggravated, rendering him incapacitated once again.

4. The applicant states that he was given the option to stay in the Army until he could be medically retired. When he learned medical retirement could take up to 9 months, after becoming restless with light duty and ostracized from his fellow soldiers, he decided to make it known he was aware of another option. He learned of this option from a sergeant who felt badly for the way he was being treated. Being a 100 percent service-connected disabled veteran has afforded him and his family with many of the same benefits and in some ways more [than he would have received had he been given a medical separation]. However, the Department of Veterans Affairs (VA) cannot give him the type of discharge and campaign service medals that he feels he deserves.

5. As supporting evidence, the applicant provides two DA Forms 705 (Army Physical Fitness Test Scorecards); a VA Rating Decision dated 27 April 1993; section VII (Current and Previous Assignments) of his DA Form 2-1 (Personnel Qualification Record); his service medical records; two DA Forms 4856 (General Counseling Forms), one dated 13 July 1992 and one undated; and his discharge packet.

6. The applicant’s military records show that he was born on 16 February 1971. He enlisted in the Regular Army on 14 April 1992. He began advanced individual training on or about 28 June 1992.

7. On 10 July 1992, the applicant was treated for a complaint of low back pain incurred while he was on kitchen police the previous day and injured his back lifting heavy dishes. The Standard Form 600 (Chronological Record of Medical Care) shows he had full active and passive range of motion without difficulty. He was tender to palpation. He was diagnosed with mechanical low back pain/lumbar muscle strain. He was placed on a temporary physical profile until about 25 July 1992 (date partially illegible) and given 48 hours bed rest.

8. A memorandum, dated 22 July 1992, from the 369th Signal Battalion Chaplain indicates the applicant talked with the Chaplain about his desire to get out of the Army. He was visibly upset the whole time he was in the Chaplain's office. His only desire was to return home to work and live out the rest of his life close to his family. He admitted that if he could not get out on a chapter 11 the Chaplain was afraid the applicant would do something stupid.

9. On 24 July 1992, the applicant's temporary physical profile was renewed for 2 weeks.

10. On 18 August 1992, the applicant received a mental status evaluation. He was determined to have a Dependent Personality Disorder. He was found to be mentally sound and able to conform his conduct to the requirements of law and to have the mental capacity to understand and participate in board or other administrative proceedings.

11. On 24 August 1992, the applicant's commander initiated separation action on the applicant under the provisions of Army Regulation 635-200, chapter 11, entry-level performance and conduct. The commander noted in a separate summary that the applicant was visibly upset and crying the whole time he talked with the commander about his desire to get out of the Army. In his current emotional state, the commander believed the applicant would either go absent without leave (AWOL) or hurt himself.

12. On 24 August 1992, the applicant acknowledged notification of the proposed separation action. He elected not to consult with consulting counsel, not to make a statement in his own behalf, and not to request a separation physical. He understood that, if approved, he would receive an entry-level separation with uncharacterized service.

13. The appropriate approval authority approved the recommendation and directed the applicant be given an uncharacterized, entry-level separation.

14. On 1 September 1992, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 11. He had completed 4 months and 18 days of creditable active service. His character of service was uncharacterized.

15. On 27 April 1993, the VA awarded the applicant a 10 percent disability rating
for chronic low back strain effective 1 October 1992. The VA examination revealed a normal range of motion in all directions. Testing of sensation in the inferior extremities was normal. Straight leg raising elicited low back pain with elevation of both legs to 80 degrees. X-ray was normal and disc spaces were preserved. Diagnosis was chronic lumbosacral strain injury.

16. Army Regulation 635-200, chapter 11 sets the policy and prescribes procedures for separating members who were voluntarily enlisted in the Regular Army, National Guard or Army Reserve, are in an entry-level status and, before the date of the initiation of separation action, have completed no more than 180 days of creditable continuous service, and have demonstrated that they are not qualified for retention. The following conditions are illustrations of conduct that do not qualify for retention: 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; or have demonstrated character and behavior characteristics not compatible with satisfactory continued service. An uncharacterized description of service is required for soldiers in an entry-level status.

17. Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty.

18. Army Regulation 600-8-22 provides Army policy and criteria concerning individual military decorations. It states that the National Defense Service Medal is awarded for honorable active service for any period between 27 June 1950 and 27 July 1954, both dates inclusive, between 1 January 1961 and 24 August 1974, both dates inclusive, and between 2 August 1990 and 30 November 1995, both dates inclusive, and between 11 September 2001 to a date to be determined.

CONCLUSIONS:

1. 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.

2. There is no evidence to show the applicant was diagnosed with a herniated disc prior to his separation nor shortly after he separated when the VA examined him in 1993. The available military medical evidence shows he was diagnosed with mechanical low back pain/lumbar muscle strain. The available VA evidence shows he was diagnosed with chronic lumbosacral strain injury.

3. The evidence of record shows the applicant acknowledged on 24 August 1992 that he would receive an entry-level separation, not a medical separation, with uncharacterized service.

4. The applicant was given an opportunity to submit a statement on his own behalf with his discharge packet wherein he could have outlined any problems he had, either with medical treatment or with treatment by his chain of command or others because of his medical problems, yet he failed to do so.

5. The applicant had an opportunity to request a separation physical examination that may have determined he should have been retained to undergo physical disability processing, yet he elected to forego a separation physical examination. He states he was given the option to stay in the Army until he could be medically retired. The Board notes that he was well over 21-years old and he admits that he made the decision to accept the faster, administrative separation.

6. From evidence in the discharge packet provided by the applicant, it appears the indication that he failed to adapt to military life was accurate. Therefore, the Board concludes that the administrative, chapter 11 discharge he was given was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

7. The uncharacterized description of service directed was appropriate considering all the facts of this case. An uncharacterized discharge merely means that the soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise.

8. Notwithstanding the regulatory reason the applicant's service was described as "uncharacterized," the Board notes that he had no disciplinary record of any kind that would have precluded him from being awarded the National Defense Service Medal for the qualifying period of service between 2 August 1990 and 30 November 1995. It would be appropriate to amend his DD Form 214 (Certificate of Release or Discharge from Active Duty) to add this service medal.

9. In view of the foregoing, the applicant’s records should be corrected but only as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by showing the applicant was awarded the National Defense Service Medal.

---

2. That so much of the application as pertains to changing the applicant's administrative separation to a medical separation be denied.

BOARD VOTE:

__fne___ __mvt___ __jtm___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __Fred N. Eichorn_____
                  CHAIRPERSON

---

INDEX

CASE ID	AR2003087724
SUFFIX
RECON
DATE BOARDED	20030819
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY	Mr. Schneider
ISSUES 1.	108.00
2.	110.04
3.
4.
5.
6.