RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 September 2006
      DOCKET NUMBER:  AR20060004568


      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. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda Simmons                 |     |Chairperson          |
|     |Mr. Paul Smith                    |     |Member               |
|     |Ms. Alice Muellerweiss            |     |Member               |

      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 that his entry level status uncharacterized
discharge be changed to a medical discharge.

2.  The applicant states that his discharge was due to a back injury that
was aggravated and made worse while he was in basic training.  He states he
was hospitalized for this injury at Fort Sill, Oklahoma.  He also states he
was advised about getting a medical discharge, but he assumed this would
prevent him from ever working again.

3.  The applicant provides no additional documents in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 6 September 1985.  The application submitted in this case is
dated 20 March 2006.

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 limitations 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.  The applicant underwent a medical examination on 3 January 1985 for the
purpose of enlistment.  The examining physician indicated that the
applicant was qualified for service with a physical profile of 111211.  On
the same date, he completed a Standard Form 93 (Report of Medical History)
in which he marked "YES" under item 11 indicating that he had or currently
had broken bones.  He marked "NO" under 11 indicating that he did not have
recurrent back pain.

4.  The applicant enlisted in the Regular Army on 20 August 1985 for a
period of three years.  He was assigned to Fort Sill, Oklahoma for basic
training.

5.  An Entrance Physical Standards Board (EPSBD) evaluated the applicant
on 30 August 1985 for a diagnosis of recurrent low back strain.  He was
given a physical profile of 113111.  After careful consideration of medical
records, laboratory findings, and medical examinations, the EPSBD found
that the applicant was medically unfit for enlistment in accordance with
current medical fitness standards.  The evaluating physicians determined
that the condition existed prior to service noting he had a past history of
mild low back pain over the past 3 years.  The EPSBD recommended that the
applicant be separated from the U.S. Army for failure to meet medical
procurement standards.  The appropriate medical approving authority
approved the findings on 3 September 1985.

6.  On 3 September 1985, the applicant acknowledged that he had been
informed of the medical findings and indicated that he understood that
legal advice of an attorney employed by the Army was available to him or
that he could consult civilian counsel at his own expense.  He also
indicated that he understood he could request to be discharged from the
U.S. Army without delay or request retention on active duty.  He concurred
with the proceedings and requested to be discharged from the U.S. Army
without delay.  The applicant's unit commander recommended that he be
separated.

7.  The applicant's personnel records contain a General Counseling Form
which shows he was formally counseled on 4 September 1985 regarding the
recommendation for separation under the provisions of Army Regulation
635-200 because he was not physically capable of meeting the demands of one
station unit training.  The unit commander stated the applicant had injured
his back three years ago which caused him to be hospitalized for a week and
he had also been in an accident where some logs rolled onto him, re-
injuring his back.

8.  On 5 September 1985, the discharge authority directed that the
applicant be discharged from the service under the provisions of Army
Regulation 635-200, paragraph 5-11(c) with an entry level status
uncharacterized discharge.

9.  The applicant was discharged on 6 September 1985 under the provisions
of Army Regulation 635-200, paragraph 5-11 by reason of failure to meet
procurement medical fitness standards with an entry level status
uncharacterized discharge.  He had 17 days of creditable active service.

10.  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 entrance 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.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) governs the evaluation for physical fitness of Soldiers who
may be unfit to perform their military duties because of physical
disability.  Under the laws governing the Army Physical Disability
Evaluation system, Soldiers who sustain or aggravate physically unfitting
disabilities must meet several line of duty criteria to be eligible to
receive retirement and severance pay benefits.  The disability must have
been incurred or aggravated while the Soldier was entitled to basic pay or
was the proximate cause of performing active duty or inactive duty
training.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge under the provisions of Army Regulation 635-
200, paragraph 5-11 based on failure to meet procurement medical fitness
standards was administratively correct and in conformance with applicable
regulations.

2.  The EPSBD Proceedings indicated the applicant had a history of lower
back pain.  Since he indicated on his Report of Medical History that he had
never had recurrent back pain, it is presumed the EPSBD got its information
from the applicant.  There is insufficient evidence to show his condition
was aggravated during the 10-day period between his enlistment and the date
the EPSBD evaluated him.

3.  The applicant was in an entry level status at the time of separation
from active duty because he had served fewer than 180 days of active
Federal service.  The determination that the applicant's service was
"uncharacterized" was in compliance with Army regulation governing
separations of Soldiers while an in an entry level status.  An
uncharacterized discharge is not meant to be a negative reflection of a
Soldier's military service.  It 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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 September 1985; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 5 September 1988.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

LS______  PM______  AM______  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.




                                  Linda Simmons_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004568                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060928                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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