RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           26 February 2004
      DOCKET NUMBER:   AR2003090971


      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             |
|     |Ms. Rosa M. Chandler              |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Arthur A. Omartian            |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Ms. Mae M. Bullock                |     |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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in essence, that her medical record be
corrected to show she is fully fit to serve in the Army and that her
uncharacterized discharge for failure to meet procurement medical fitness
standards be amended to reflect the same.

2.  The applicant states that she has no knee problems.  She states, in
essence, in a letter written to the Board that, in 1998, at Fort Jackson,
South Carolina, she experienced discomfort in her knee after a 1 mile run
and that she told the military doctor that she had experienced pain in her
knee for a year so that she could go home, let her knee rest and return to
basic training later.  He could find nothing wrong with her knee so he
wrote down what she told him.  Her X-rays were normal, there were no broken
bones and her joints were in good shape.  She was advised that she was fine
and to take Tylenol for the discomfort.  She did not know that her false
statement would become a part of her record or affect her ability to return
to military service.  She works for a nonprofit organization and walks 8
hours everyday, 5 days a week.

3.  The applicant provides in support of her request Entrance Physical
Standards Board Proceedings, and a copy of her DD Form 214 (Certificate of
Release or Discharge form Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an error or injustice which
occurred on 25 February 1998.  The application submitted in this case is
dated 31 April 2003.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  On 12 August 1997, the applicant enlisted in the Alaska Army National
Guard. On 28 January 1998, she reported for active duty for training at
Fort Jackson.  On 5 February 1998, she reported to sick call and complained
of having severe bilateral knee pain intermittently for the past year.  The
examining official
determined that both of the applicant's knees were normal. There was no
evidence of fracture, dislocation or other abnormality.  No joint effusion
or significant arthritic change.  The joint space was adequately
maintained.

4.  The applicant went on sick call again on 6, 8, 10, 14 and 17 February
1998.  Each time, professionally trained personnel evaluated the
applicant's knees for pain.  The applicant was referred to an Entrance
Physical Standards Board.

5.  On 17 February 1998, an Entrance Physical Standards Board determined
the applicant had a 1-year history of chronic bilateral knee pain and that
there was no trauma.  The subjective findings were the applicant's knees
grind; she experienced chronic pain; could not kneel; crawl; run; march or
jump.  The objective findings were bilateral retropatellar grind and the
remainder was within normal limits.  X-ray results were also within normal
limits.  The diagnosis was Chronic Retropatellar Pain Syndrome, bilateral.
The recommendation was that the applicant be separated from the Army for
failure to meet medical procurement standards in accordance with chapter 2,
paragraph 11b, Army Regulation 40-501.  Her condition was determined to
have existed prior to service and it was not permanently service
aggravated.  She did not meet medical retention standards in accordance
with Chapter 3, Army Regulation 40-501.

6.  On 19 February 1998, the applicant authenticated a statement with her
own signature in which she acknowledged she understood and concurred with
the Entrance Physical Standards Board’s findings and that she was
unqualified for retention in the military because of a physical disability
that existed prior to entry into active service.  She also requested to be
discharged from the Army without delay.  On the same day, her commander
recommended discharge and the separation authority approved the applicant's
request for discharge under the provisions of paragraph 5-11, Army
Regulation 635-200.

7.  On 14 April 1997, the applicant was separated with an uncharacterized
discharge under the provisions of paragraph 5-11, Army Regulation 635-200,
for failure to meet procurement medical fitness standards.  She had served
28 days of active military service.

8.  Army Regulation 635-200 provides the basic authority for the separation
of enlisted personnel.  Paragraph 5-11 specifically provides that soldiers
who were not medically qualified under procurement medical fitness
standards, when accepted for enlistment, or who became medically
disqualified under these standards prior to entry on active duty or active
duty training or initial entry 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 six 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 under the provisions
of Army Regulation 40-501, chapter 3.  The characterization of service for
soldiers separated under this provision of regulation will normally be
honorable, but will be uncharacterized if the soldier is in an entry-level
status. Army regulations state that a soldier 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation with an uncharacterized
discharge after serving just 28 days due to failure to meet procurement
medical fitness standards was in compliance with applicable regulations,
with no indication of procedural errors which would have jeopardized her
rights.

2.  The evidence available supports the separation action and the
applicant's contentions provide no basis for changing the discharge or
medical documents.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 February 1998; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 24 February 2001.  However, the applicant did not file
within the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

___aao__  __jtm___  __mmb___  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.



                 Arthur A. Omartian
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003090971                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040226                                |
|TYPE OF DISCHARGE       |(UNCHAR)                                |
|DATE OF DISCHARGE       |19980128                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 5                       |
|DISCHARGE REASON        |A78.00                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.7800                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |