RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 April 2007
	DOCKET NUMBER:  AR20060013434 


	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:


Mr. John Infante

Chairperson

Ms. Susan A. Powers

Member

Mr. Qawiy A. Sabree

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 medical with a honorable discharge for medical disqualification.

2.  The applicant states, in effect, that his right elbow sustained aggravating injuries during his initial 27 days of basic training.  He states that he was medically separated due no fault of his own and he had served his country honorably.

3.  The applicant provides a copy of a DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 23 February 1993.  The application submitted in this case is dated  
11 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 applicant’s failure to timely file.

3.  The applicant entered active duty on 27 January 1993.  He attended basic combat training but was unable to complete his training due to a physical disability that Existed Prior To Service (EPTS).  He was honorably discharged on 23 February 1993.

4.  An entrance physical standards board proceedings dated 11 February 1993 shows that the applicant had a "prior injury to his right elbow with subsequent scarring to the right ulnar nerve requiring surgical transposition of the right ulnar nerve in November 1991.  The applicant noted that with increased physical activity such as pushups his arm becomes weaker with numbness along the ulnar distribution of the right forearm."   The applicant was placed on a permanent profile pending an entry level separation.


5.  On 12 February 1993, the applicant was diagnosed with ulnar nerve palsy secondary to old injury and surgery not service aggravated.  The physician who evaluated the applicant states that although the applicant met the criteria for retention, it was in the best interest of the applicant medically and the U.S. Government to separate the applicant from active duty under the provision of paragraph 5-11, Army Regulation 635-200 (Personnel Separation).

6.  On 16 February 1993, the findings and recommendations were approved.  On 17 January 1993, the applicant was informed of the approved findings and recommendations of the board.

7.  The applicant understood that he may request to be discharge from the U.S. Army without delay or to request retention on active duty.  He also understood if he was retained he may be involuntarily reclassified into another military occupational specialty based upon his medical condition.  The applicant concurred with the proceedings and request to be discharged from the U.S. Army without delay.

8.  The applicant received an uncharacterized discharge on 23 February 1993 for medical disqualification, EPTS, under the provision Army Regulation  
635-200 paragraph 5-11.

9.  Army Regulation 635-200 (Personnel Separations) 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.

10.  Army Regulation 635-200 (Personnel Separations), chapter 11, establishes policy and prescribes procedures for separating members.  This regulation provides that a separation will be described as entry-level with service uncharacterized if processing is initiated while a soldier is in entry-level status, except when (1) Characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case,
(2) HQDA (AHRC–EPR–F), on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.  This characterization is authorized when the soldier is separated by reason of selected changes in service obligation, convenience of the Government, and Secretarial plenary authority.  Entry level status is defined as the first 180 days of continuous active duty.  It further states that the character of service for members separated under the provisions of this chapter will be uncharacterized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his uncharacterized discharge be changed to medical with an honorable discharge for medical disqualification.

2.  Since the applicant's medical condition existed prior to entrance on active service, he was properly discharged under the provisions of AR 635-200, paragraph 5-11.  There is no evidence to show the applicant had a service related injury while he was on active duty.

3.  The Board must review a case with a presumption of regularity, that what the Army did was correct.  It is up to the applicant to prove otherwise.  The applicant has not submitted any evidence or argument to overcome the presumption of regularity.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 23 February 1993; therefore, the time for the applicant to file a request for correction of any error or injustice expired on  
22 February 1996.  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

___sap__  ___ji____  ___qas__  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.




__________John Infante____________
          CHAIRPERSON




INDEX

CASE ID
AR20060013434
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070403
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.