IN THE CASE OF:	  

		BOARD DATE:	  	  24 July 2008

		DOCKET NUMBER:  AR20080007707 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, a medical retirement and/or an honorable discharge. 

2.  The applicant states, in effect, that she was honorably discharged due to a medical injury.  She contends that the “uncharacterized” character of service makes it hard for her to receive medical attention.

3.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty); a DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings); and a VA Form 21-4138 (Department of Veterans Affairs Statement in Support of Claim), dated 10 April 2008.   

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2.  The applicant enlisted on 3 November 1998 for a period of 4 years.   

3.  On 1 March 1999, an EPSBD diagnosed the applicant as having bilateral patella hypermobility, existed prior to service (EPTS).  The EPSBD found the applicant medically unfit for enlistment in accordance with current medical fitness standards and determined that her knee injury existed prior to service.  The EPSBD recommended that the applicant be separated from the Army for failure to meet medical procurement standards.  On 9 March 1999, in her own hand, the applicant concurred with the proceedings and requested to be discharged from the U.S. Army without delay.  The unit commander recommended discharge and the discharge authority directed that the applicant be discharged from the Army.

4.  The applicant’s DD Form 214 shows that she was discharged on 12 March 1999 with an uncharacterized discharge under the provisions of Army Regulation 635-200, chapter 11, for entry level performance and conduct.  She had served a total of 4 months and 10 days of creditable active service. 

5.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 (Entry Level Performance and Conduct) of this regulation provides for the separation of personnel due to unsatisfactory performance or conduct (or both) while in an entry level status.  This provision of regulation applied to individuals who had demonstrated inability, lack of reasonable effort, or failure to adapt to the military environment.  The regulation states 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.  The Soldier’s service is uncharacterized when separated under this chapter.

6.  Army Regulation 635-200, 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.

7.  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.  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.   

8.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

9.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were noted.  However, in 1999 an EPSBD found the applicant medically unfit for enlistment in accordance with current medical fitness standards and determined that her knee injury existed prior to her entry into military service.  The applicant concurred with these proceedings and requested to be discharged from the Army without delay.  Therefore, there is no basis for granting the applicant’s request for a medical retirement.

2.  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.  As a result, there is no basis for granting the applicant's request for an honorable discharge.

3.  It is noted that the separation authority (i.e. Chapter 11) and narrative reason for separation (i.e. Entry Level Performance and Conduct) on the applicant’s DD Form 214 are incorrect.  However, these items will not be corrected unless requested by the applicant.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xx____  ___xx___  ___xx___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




      _______xxxx _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080007707





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ABCMR Record of Proceedings (cont)                                         AR20080007707



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