IN THE CASE OF:	  

		BOARD DATE:	        06 JANUARY 2009

		DOCKET NUMBER:  AR20080015643 


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, that the entry of "Uncharacterized" in item 24 (Character of Service) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to read "Honorable."

2.  The applicant essentially states that item 24 of his DD Form 214 states that he has an uncharacterized discharge, but that he was given a medical discharge because he had flat feet.  He also states, in effect, that he wants his characterization of service changed to honorable because he was denied employment by the State of Nevada Department of Corrections because item 24 of his DD Form 214 shows that his characterization of service was uncharacterized instead of honorable.

3.  The applicant provides his DD Form 214 in support of this application.

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 military records show that he enlisted in the Regular Army on 20 October 1988.  He entered one-station unit training on 26 October 1988; however, on 29 November 1988 he was issued a temporary medical profile for bilateral flat feet which existed prior to service (EPTS).  Also on this date, he went before an Entrance Physical Standards Board (EPSB).  The proceedings of the EPSB essentially show that the applicant was found unfit for enlistment in accordance with Army Regulation 40-501 (Standards of Medical Fitness), and it was recommended that he be separated from the military service for his bilateral flat feet which was EPTS.  On 16 December 1988, the applicant concurred with the EPSB proceedings and requested to be discharged from the United States Army without delay.  On 19 December 1988, the proper separation authority approved the applicant’s discharge.

3.  On 21 December 1988, the applicant was discharged under the provisions of paragraph 5-11 (Separation of personnel who did not meet procurement medical fitness standards), Army Regulation 635-200 (Enlisted Personnel – Personnel Separations).  The DD Form 214 that he was issued at the time of his discharge shows that he only completed 2 months and 2 days of active duty service.  Item 24 of this document has an entry of “Uncharacterized.”

4.  Army Regulation 635-200, in effect at the time, provided the basic authority for the separation of enlisted personnel.  Paragraph 5-11 specifically provided 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.  Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within 6 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.  Entry level status is defined as the first 180 days of continuous active duty. 

5.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the entry of "Uncharacterized" in item 24 of his DD Form 214 should be changed to read "Honorable."

2.  It is understandable why the applicant would feel that his characterization of service should have been honorable.  However, as he was medically separated while in an entry level status, he was not eligible for an honorable discharge, and his character of service was properly shown as uncharacterized.  Additionally, the applicant concurred with the EPSB proceedings and requested to be discharged from the United States Army without delay, even though he had the option of disagreeing with the EPSB proceedings if he believed his condition did not exist prior to his service, and to request that his case be returned to the medical approving authority for reconsideration.

3.  The evidence of record confirms that the applicant’s discharge processing was accomplished in accordance with applicable regulations, and that his discharge accurately reflects his overall record of service.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case, and the Board is satisfied that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. 

4.  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.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

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)                                         AR20080015643



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ABCMR Record of Proceedings (cont)                                         AR20080015643



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