IN THE CASE OF:	  

		BOARD DATE:	  23 September 2008

		DOCKET NUMBER:  AR20080011105 


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 discharge.

2.  The applicant states, in effect, that she was misled, misinformed and given an uncharacterized discharge.  She was in excellent health when she went into the Army, but after her injuries she fell behind and she was eventually terminated.  She believes this to be an injustice because she was not given an opportunity to heal, or recuperate, but instead she was terminated   

3.  The applicant provides in support of her application a copy of her pre-entry examination and a self- authored letter of what transpired in support of her application (missing from her file).

CONSIDERATION OF EVIDENCE:

1.  On 27 February 2008, the applicant's record shows she enlisted in the Regular Army with a medical waiver for her reconstructed left knee for an injury that occurred in January 2003.  The Record of Medical History (DD Form 2807-1) completed on her during her enlistment processing also confirms that she had a left knee injury in January 2003 and reconstructed surgery was performed.  

2.  On 14 March 2008, the applicant was counseled for failure to meet the minimum standard of 50% in each event of the diagnostic physical fitness test.  She was informed that she would be given a second diagnostic test in the immediate future.

3. On 29 March 2008, the applicant was injured while performing physical training.  The next day, the applicant was seen by the attending physician at Moncrief Army Community Hospital at Fort Jackson, South Carolina for a left knee injury.  The applicant was given limited duty due to left knee pain (details of the applicant injury are missing from her file).  

4.  The available record indicates that the applicant was counseled on five different occasions for missing physical training (Details are missing from her file).  

5.  On 16 April 2008, the applicant’s unit commander notified the applicant of his intent to initiate action to separate her under the provisions Army Regulation
635-200, Chapter paragraph 5-17, (Designated Physical or Mental Condition).  The reason for his proposed action was that the applicant was unable to complete Basic Combat Training due to left ACL reconstruction prior to enlistment.  The applicant’s unit commander recommended that she be discharged under the provisions of Army Regulation 635-200, Chapter 5, paragraph 5-17 (Other Designated Physical or Mental Condition) with an uncharacterized discharge.  

6.  On the same day, the applicant acknowledged notification of her proposed separation action to separate her from the United States Army under the provisions of Army Regulation 635-200, Chapter 5, paragraph 5-17.  She was advised of the basis for the contemplated action to separate her under the provisions of Army Regulation 635-200, Chapter 5, paragraph 5-17 (Other Designated Physical or Mental Conditions); and the effect of any action taken by her in waving her rights.  She also acknowledged and understood that if she had 6 years of total active and reserve service at the time of her separation, under Army Regulation 635-200, Chapter 5, Paragraph 5-17, that she would be entitled to have her case heard by an administrative separation board unless she was considered for discharge under other than honorable conditions.  Having had the opportunity to consult with counsel.  The applicant acknowledged that she was aware that she was not eligible to have her case heard by an administrative separation board because she had less than 6 years total of military service and that her service would be Entry Level, Uncharacterized.  She also acknowledged that she may expect to encounter substantial prejudice in civilian life.  She elected not to make a statement in her own behalf.  

7.  On 18 April 2008, the separation authority approved the applicant’s discharge under the provisions Army Regulation 635-200, Chapter 5, paragraph 5-17, for (Other Designated Physical or Mental Conditions) and that she be issued an uncharacterized character of service discharge.  On 24 April 2008, the applicant was discharged, in accordance with the provisions of Army Regulation 635-200, Chapter 5, paragraph 5-17, with an uncharacterized character of service.  At the time of her discharge, the applicant was credited with completing 1 month, and 28 days of net active service.

8.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-17 provides that a Soldier may be separated for other physical or mental conditions not amounting to a disability under Army Regulation 635-40, which interferes with assignment to or performance of duty.  The regulation requires that the condition interferes with the Soldiers’ ability to perform duty, and requires that the diagnosis be so severe that the Soldier’s ability to function in the military environment is significantly impaired.  Army policy states that the service of personnel separated under this paragraph will be characterized as honorable, general, under honorable conditions, or uncharacterized if in entry-level status.  A general, under honorable conditions discharge is normally inappropriate for individuals separated under the provisions of Chapter 5-17.  

9.  Army Regulation 635-200 provides the following definition of entry level status (ELS):  For Regular Army Soldiers, ELS is the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break in service of more than 92 days of active military service. 

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-9 contains guidance on ELS separations.  It states, in pertinent part, that a separation will be described as "Uncharacterized" if at the time separation action is initiated; the Soldier has less than 180 days of continuous active duty service.  An uncharacterized service description is normally granted to Soldiers separating under this action.  A general discharge is not authorized under ELS conditions, and an honorable discharge is rarely ever granted.  An honorable discharge may be given only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.  




12.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains item-by-item preparation instructions for the DD Form 214.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that her discharge should be changed to a medical discharge was carefully considered and found to not have merit.  The evidence of record shows she enlisted in the Regular Army with a medical waiver for her reconstructed left knee, due to an injury that occurred in January 2003.  The applicant’s DD Form 2807-1 completed during enlistment processing also confirms that she had a left knee injury in January 2003 and reconstructed surgery was performed.  

2.  Although, the applicant re-injured her left knee during training, it was also documented that before she re-injured her left knee the applicant was unable to pass the diagnostic physical fitness test.  The unit commander recommended the applicant for discharge under the provision of Army Regulation 635-200, Chapter 5, paragraph 5-17, because in his judgment the applicant would not be able to complete basic training due to reconstruction of the left knee prior to enlistment.  The applicant was advised of the basis for the contemplated action to separate her under the provisions of Army Regulation 635-200, Chapter 5, paragraph 5-17 (Other Designated Physical or Mental Conditions).  The applicant’s voluntary consent to separate under the provisions of Army Regulation 635-200, Chapter 5 paragraph 5-17, was administratively correct and in conformance with applicable regulations.  There is no indication that the consent was made under coercion, duress or that her rights were violated in any way.  Further, the applicant acknowledged in a signed statement that she understood what she was signing.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  The evidence of record confirms that separation action was initiated on her while she was in an ELS, prior to completing 180 days of continuous active military service.  

4.  The record also shows the applicant's service was described as uncharacterized as a result of her being separated while in an ELS.  A Soldier is in an ELS, or probationary period, for the first 180 days of continuous active duty. Therefore, in view of the foregoing, there is insufficient evidence upon which to grant the applicant’s request.

5.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X____  ___X_____  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.




      _______ _   _X______   ___
               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)                                         AR20080011105



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ABCMR Record of Proceedings (cont)                                         AR20080011105



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