RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 5 April 2007
DOCKET NUMBER: AR20060013103
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. Gerard W. Schwartz
Acting Director
Mr. Dean L. Turnbull
Analyst
The following members, a quorum, were present:
Ms. Linda D. Simmons
Chairperson
Mr. Jeffrey C. Redmann
Member
Mr. Scott W. Faught
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 uncharacterized discharge be changed to an honorable discharge.
2. The applicant states, in effect, that he was discharged with a physical disability and is currently receiving a service connected disability rating of
10 percent from the Veterans Administration. He found out that his discharge can be changed to an honorable discharge for medical reasons.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a copy of a letter from the Department of Veterans Affairs (DVA), dated 29 October 2004.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged injustice which occurred on 24 February 1990. The application submitted in this case is dated
5 September 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 applicants failure to timely file.
3. The applicant entered active duty on 23 October 1989. He attended basic combat training but was unable to complete his training due to an injury to his right knee while running in a physical training formation. He was diagnosed with "right knee patellofemoral syndrome and chronic patellar tendonitis. Not responding to conservative management."
4. A DA Form 3647 (Inpatient Treatment Record Cover Sheet) shows that a Medical Evaluation Board (MEBD) convened on 18 January 1990 and referred the applicant to a Physical Evaluation Board (PEB). On 23 January 1990, the applicant was admitted to the Medical Holding Company pending the results from the PEB.
5. On 29 January 1990, the PEB convened. The PEB recommendation was to separate the applicant with 10 percent severance pay. On 5 February 1990, the applicant concurred with the recommendation.
6. On 12 February 1990, the Commander, Military Personnel Center, directed that the applicant be discharged under the provision of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24e (3) for physical disability with 10 percent severance pay.
7. On 24 February 1990, the applicant received an uncharacterized discharge for physical disability with severance pay. He had completed a total of 4 months and 2 days of active service.
8. Army Regulation 635-200 (Enlisted Personnel) states, in pertinent part, that a characterization at separation will be based upon the quality of the Soldier's service, including the reason for separation. A separation will be uncharacterized if processing is initiated while a Soldier is in entry level status except in when characterization is under other than honorable or the Secretary of the Army, on a case-by-case basis, determines that the characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests that his uncharacterized discharge be changed to an honorable discharge.
2. Since the applicant was still in an entry level status at the time of his physical disability separation his discharge was properly uncharacterized in accordance with regulatory guidance.
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 this requirement. Therefore, he is not entitled to correction of his records to show an honorable discharge.
4. Records show the applicant should have discovered the alleged error or injustice now under consideration on 24 February 1990; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
23 February 1993. 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
____swf _ ___jcr___ ___lds___ 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 D. Simmons________
CHAIRPERSON
INDEX
CASE ID
AR20060013103
SUFFIX
RECON
YYYYMMDD
DATE BOARDED
20070405
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.
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