IN THE CASE OF:	  

		BOARD DATE:	       30 October 2008

		DOCKET NUMBER:  AR20080014574 


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 the character of her service be changed from “Uncharacterized” to “Honorable” and the narrative reason for separation be changed from “Entry Level Status” to “Medical.” 

2.  The applicant states that she was injured during training and cracked her pelvic bone after falling several times.  She further adds that she loved and enjoyed the Army and had planned to make a career in the Army before and during her injury.  However, after her injury, she was held over and was then offered a medical discharge.  

3.  The applicant provides the following additional documentary evidence in support of her application:

	a.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 16 March 1990.

	b.  Headquarters, U.S. Army Training Center and Fort Dix, Fort Dix, New Jersey (NJ), Orders 075-023, dated 16 March 1990.

	c.  Letter, dated 13 March 2008, from the National Personnel Records Center. 

	d.  DD Form 4 (Enlistment/Reenlistment Document), dated 2 October 1989.

	e.  DA Form 2-1 (Personnel Qualification Record).

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's records show she enlisted in the Regular Army for a period of 3 years on 2 October 1989.  She subsequently proceeded to her one station unit training (OSUT) at Fort Dix, New Jersey (NJ) to attend basic combat and advanced individual training (AIT).

3.  On 12 October 1989, the applicant was counseled by her drill sergeant for failing to achieve minimum required standards for the Army Physical Fitness Test (APFT) conducted at the end of the first week of training.

4.  The facts and circumstances surrounding the applicant's injury are not available for review with this case.  However, the applicant's records indicate that on an unknown date while attending basic combat training, she was issued a temporary physical profile for pelvic stress.  She was verbally counseled by her unit first sergeant, senior drill sergeant, and other cadre within the unit, and was provided with physical therapy in the form of swimming pool exercises, three times a week. 

5.  On 28 February 1990, the applicant was counseled for her failure to pass a diagnostic APFT and failure to show any improvement on physical training and developing an attitude along with a complete lack of motivation.  The applicant acknowledged having been counseled and concurred that the information entered on her counseling form reflected the counseling session.

6.  On 1 March 1990, the applicant was counseled by her immediate commander who remarked that since her arrival to the unit, she had been on a temporary physical profile for a period of 120 days, but showed no improvement even after rehabilitative therapy at the swimming pool.  During her 120 day extended physical profile, the applicant developed a negative attitude and started showing signs of lack of motivation.  The negative attitude and lack of motivation continued despite the positive counseling provided by her chain of command.  

7.  On 1 March 1990, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against her in accordance with chapter 11 of Army Regulation (AR) 635-200 (Personnel Separations) by reason of extended physical profile, negative attitude, and extreme lack of motivation. 

8.  On 1 March 1990, the applicant acknowledged receipt of the notification of separation action and was advised of the basis for her contemplated separation and its effects, the rights available to her, and the effects of a waiver of her rights She further acknowledged that Department of Veteran Affairs (VA) and other benefits normally associated with completion of active service would be affected. She elected not to consult with counsel, elected not to make a statement or submit a rebuttal in her behalf, and waived a separation medical examination.

9.  On 1 March 1990, by endorsement, the applicant’s immediate commander recommended the applicant be separated from the Army under the provisions of chapter 11 of AR 635-200 for lack of motivation and negative attitude.  The immediate commander further remarked that further active duty would have created serious disciplinary problems or a hazard to the military mission and/or to Soldiers. 

10.  On 6 March 1990, the separation authority reviewed the proposed separation action and approved an entry level separation (uncharacterized) in accordance with chapter 11 of AR 635-200.  The separation authority further remarked that the applicant did not really try to participate in basic combat training and that she was content to ride and abuse the medical profile/sick call system.  He further added that although she had been on convalescent leave and a series of profiles, she maintained that she was not healed.  The unit tried a number of methods to motivate her, to include the use of the swimming pool as a means of physical therapy, and while she stated that she tried, her constant string of profiles indicated otherwise.  It was evident that she could not be motivated to avoid the abuse of the medical profile system.  She had more than an ample opportunity and had demonstrated that she did not want to apply herself.  She could not be a productive Soldier.

11.  The applicant was accordingly discharged on 16 March 1990.  The DD Form 214 she was issued at the time of her discharge confirms she was discharged under the provisions of paragraph 11-3a of AR 635-200 with service Uncharacterized, by reason of entry-level status – performance and conduct.  This form further confirms that she completed a total of 5 month and 15 days of creditable active military service.  Item 27 (Reentry Code) of this form show the entry "RE-3.”

12.  There is no indication in the applicant’s records that she was issued a permanent physical profile or that she underwent a medical evaluation board (MEB) or a physical evaluation board (PEB).

13.  AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of this regulation sets policy and provides guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in entry level status.  It states in pertinent part that when separation of a member in entry level status is warranted by unsatisfactory performance or minor disciplinary infractions (or both) as evidenced by inability, lack of reasonable effort, or failure to adapt to the military environment, the member normally will be separated per this chapter.  This separation policy applies to enlisted members of the Regular Army, who have completed no more than 180 days active duty on current enlistment by the date of separation, have demonstrated that they are not qualified for retention for one or more of the following reasons: Cannot or will not adapt socially or emotionally to military life; cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline; have demonstrated character and behavior characteristics not compatible with satisfactory continued service; or failed to respond to counseling.

14.  Chapter 3 of AR 635-200 describes the different types of characterization of service.  It states in pertinent part that an Uncharacterized Separation is an entry-level separation.  A separation will be described as an entry-level separation if processing is initiated while a member is in entry-level status, except when characterization Under Other Than Honorable Condition is authorized under the reason for separation and is warranted by the circumstances of the case or when The Secretary of the Army, 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.

15.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  AR 601-210 (Regular Army and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  In the version in effect at the time, Paragraph 3-10 
stated that individuals with prior service were eligible for enlistment if they qualified under the criteria listed in this paragraph.  Chapter 3 included a list of Armed Forces RE codes, including Regular Army RE codes.  RE-1 applied to persons who completed an initial term of active service who were fully qualified for enlistment when separated and RE-3 applied to persons who were not qualified for reentry or continuous service at the time of separation, but the disqualification was waivable.

16.  AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), governs the evaluation for physical fitness of Soldiers who may be unfit to their military duties because of physical disability.  This regulation applies to the Active Army, the Army National Guard and the U.S. Army Reserve.  Paragraph 3-2b of this regulation provides for retirement or separation from active service.  This provision of regulation states that disability compensation is not an entitlement acquired by reason of service incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  The regulation also states that, when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement creates a presumption that the soldier is fit.

17.  Chapter 61, Title 10, U.S. Code provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The US Army Physical Disability Agency, under the operational control of the Commander, US Army Human Resources Command (USAHRC), Alexandria, VA, is responsible for operating the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in Chapter 61, 10 USC, and in accordance with Department of Defense (DOD) Directive 1332.18 and Army Regulation 635-40.  
Soldiers enter the Physical Disability Evaluation System four ways:  

	a.  Referred by an MEB.  When a Soldier has received maximum benefit of medical treatment for a condition that may render the Soldier unfit for further military service, the medical treatment facility (MTF) conducts an MEB to determine whether the Soldier meets the medical retention standards of AR
40-501, chapter 3.  If the Soldier does not meet medical retention standards, he or she is referred to a PEB to determine physical fitness under the policies and procedures of AR 635-40; 

	b.  Referred by the MOS/Medical Retention Board (MMRB).  The MMRB is an administrative screening board the chain of command uses to evaluate the ability of Soldiers with permanent 3 or 4 medical profiles to physically perform in a worldwide field environment in their primary military occupation specialty.  Referral to a MEB/PEB is one of the actions the MMRB Convening Authority may direct; 

	c.  Referred as the result of a fitness for duty medical examination.  When a commander believes a Soldier is unable to perform MOS-related duties due to a medical condition, the commander may refer the Soldier to the MTF for evaluation.  If evaluation results in an MEB, and the MEB determines that the Soldier does not meet medical retention standards, the Soldier is referred to a PEB; and 

	d.  Referred as a result of HQDA action.  The Commander, Army Human Resources Command (HRC), upon recommendation of The Surgeon General, may refer a Soldier to the responsible MTF for medical evaluation as described in (3) above.  HRC also directs referral to a PEB when it disapproves the MMRB recommendation to reclassify a Soldier.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant demonstrated character and behavior characteristics, in the form of a negative attitude and lack of motivation, that were not compatible with satisfactory continued service.  Accordingly, her immediate commander initiated separation action against her.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects her military service at that time.

2.  During the first 180 days of continuous active military service, a member's service is under review.  When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant an under other than honorable conditions discharge.  An honorable characterization may be given only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and is approved by the Secretary of the Army.  

3.  The entry-level separation is given regardless of the reason for separation. This uncharacterized discharge is neither positive nor negative; it is not "derogatory."  It simply means the Soldier did not serve long enough to qualify for a specified characterization of service.  Furthermore, the applicant was issued an RE-3 code, which would have allowed her to reenter the Army with a waiver.  
However, contrary to her contention that she wanted to make the Army a career, there is no evidence in her records and she did not provide any evidence that she attempted to renter the Army that she loved.
4.  With respect to the applicant’s contention that the narrative reason for separation be changed to medical, and contrary to her contention that she was offered a medical discharge, there is no evidence in the applicant's records and the applicant did not submit any evidence that shows her medical condition would have warranted her referral to the Physical Disability Evaluation System (PDES).  Therefore, she was not considered by an MEB.  Without an MEB, there would have been no basis for referring her to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or retired by reason physical disability.

5.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement in this case.  Therefore, she is not entitled to relief.

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.


															XXX
      ______________________
               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)                                         AR20080014574



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ABCMR Record of Proceedings (cont)                                         AR20080014574



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