IN THE CASE OF:	  

		BOARD DATE:	  	  22 January 2009

		DOCKET NUMBER:  AR20080015987 


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 his uncharacterized discharge be changed to an honorable discharge.

2.  The applicant states, in effect, he was informed he was getting an honorable medical discharge and "all [he] had to do was request [his] forms and everything would be taking (sic) care of."  He also states that his records will show he was a good Soldier, passed all physical examinations and physical fitness tests, finished at the top of his class, and that he really wanted to serve his country.  He further states that he did not have any prior service and concludes by stating he would like his records corrected to show he was given an honorable medical discharge documenting his service as a U.S. Army veteran.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with an effective date of 25 November 1992.

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 personnel records show he enlisted in the U.S. Army Reserve for a period of 8 years on 22 May 1992 and entered the Delayed Entry Program (DEP).  He then enlisted in the Regular Army for a period of 4 years and entered active duty on 30 June 1992.

3.  The applicant’s military personnel records contain a DA Form 2-1 (Personnel Qualification Record).  Item 35 (Record of Assignments), in pertinent part, shows he was assigned to Company E, 2d Battalion, 28th Infantry Regiment, 1st Basic Training Brigade, Fort Jackson, South Carolina, on 24 July 1992 to attend basic combat training.  This item also shows he was assigned on 18 September 1992 to Company H, 262nd Quartermaster Battalion, 23d Brigade, Fort Lee, Virginia, to attend advanced individual training.

4.  The applicant’s military personnel records contain a DA Form 705 (Army Physical Fitness Test (APFT) Scorecard) that shows he earned 169 total points on the APFT on 27 July 1992, 171 total points on the APFT on 8 August 1992, 179 total points on the APFT on 24 August 1992, 232 total points on the APFT on 1 September 1992, and 211 total points on the APFT on 19 September 1992.

5.  On an unspecified date in October 1992, the applicant submitted a request for discharge from military service for physical disability based upon the findings and recommendation of a medical evaluation board (MEB) which considered him unqualified for retention in the military service due to a physical disability that was found to have existed prior to entry into active service (EPTS).  The applicant’s request shows he acknowledged that the MEB determination found that the disability was not incident to, or aggravated by, his military service.  His request also shows that he acknowledged he had been fully informed and understood that he was entitled to the same consideration and processing as any other member of the U.S. Army separated for physical disability, including consideration of his case by a physical evaluation board (PEB).  This document further shows that the applicant elected not to exercise this right, indicated he understood he would be separated by reason of an EPTS physical disability, and would receive a discharge in keeping with the character of his service as decided by the officer designated to effect his separation from military service.  The applicant also indicated that he understood that the Department of Veterans Affairs (VA) would determine any entitlement to VA benefits.

6.  On 18 November 1992, the Commander, 23rd Quartermaster Brigade, Fort Lee, Virginia, approved the applicant’s separation under the provisions of Army Regulation 635-40 (Physical Evaluation, Retention, Retirement, or Separation), chapter 5 (Separation for Non-Service Aggravated, EPTS Conditions upon Soldier’s Waiver of PEB Evaluation), based on a physical disability that existed prior to his entry on active duty and directed the applicant be released from active duty with service uncharacterized and a separation program designator (SPD) code of "KFN."

7.  The applicant’s military personnel records contain a DD Form 214 that confirms he entered active duty on 30 June 1992 and was separated from the Army on 25 November 1992 with an uncharacterized discharge under the provisions of Army Regulation 635-40, chapter 5, based on a physical disability that existed prior to entry on active duty as determined by a medical board.  At the time he had completed 4 months and 26 days of net active service during this period.  Item 18 (Remarks) shows he had service in the DEP from 22 May 1992 to 29 June 1992.

8.  Army Regulation 635-40, chapter 5, in pertinent part, provides for separation of an enlisted Soldier for non-service aggravated EPTS conditions when the Soldier requests waiver of a PEB evaluation.  Paragraph 5-5 (Action by commander authorized to effect discharge), in pertinent part, states that if the Soldier is in an entry-level status at the time of processing, the DD Form 214 may describe the service as uncharacterized.

9.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of "KFN" as the appropriate code to assign to enlisted Soldiers discharged under the provisions of Army Regulation 635-40, chapter 5, based on a physical disability that existed prior to entry on active duty as determined by a medical board.

10.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 3 (Character of Service/Description of Separation), Section II (Types of Characterization or Description), paragraph 3-4 (Types authorized), provides that the following types of characterization of service or description of separation are authorized:  (1) separation with characterization of service as honorable, general (under honorable conditions), or under other than honorable conditions; (2) entry-level status (service will be uncharacterized), except as provided in paragraph 3-9a; (3) order of release from the custody and control of the Army by reason of void enlistment or induction; and (4) separation by being dropped from the rolls of the Army.  The types of separation will be used in appropriate circumstances unless limited by the reason for separation.

11.  Army Regulation 635-200, paragraph 3-7 (Types of administrative discharges/character of service), in pertinent part, 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  This paragraph also provides that only the honorable characterization may be awarded a Soldier upon completion of his or her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under specific reason for separation, unless an entry-level status separation (uncharacterized) is warranted.

12.  Army Regulation 635-200, paragraph 3-9 (Uncharacterized separations), in pertinent part, provides that a separation will be described as an entry-level separation with service uncharacterized, if processing is initiated while a Soldier is in entry-level status.  This document provides, in pertinent part, that entry-level status terminates 180 days after the Soldier’s entry on active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his uncharacterized discharge should be changed to an honorable medical discharge because he passed all physical examinations and APFTs and was informed he would get an honorable medical discharge.  He also contends that he did not have any prior military service.

2.  The evidence of record shows that the applicant had service in the U.S. Army Reserve DEP from 22 May 1992 to 29 June 1992 and he entered active duty on 30 June 1992.

3.  The evidence of record shows that the applicant was administered the APFT on five separate occasions during the period of his military service.  The evidence of record also shows he did not pass the APFT on the first three occasions that he was administered the test and passed the APFT on the last two occasions he was administered the test.  Thus, the evidence of record does not support the applicant’s contention that he passed all his APFTs.

4.  The evidence of record shows that the applicant appeared before an MEB which considered him unqualified for retention in the military service due to a physical disability that was found to have existed prior to entry into active service.  Thus, the evidence of record does not support the applicant’s contention that he passed all physical examinations.

5.  The evidence of record shows the applicant submitted a request for discharge from military service for physical disability based upon the findings and recommendation of a MEB, which considered him unqualified for retention in the military service due to physical disability that was found to have existed prior to entry into active service (emphasis added).  That is, the physical disability was found to have existed prior to his military service, not that the applicant had military service prior to his entry into military service for the period of service under review.  Thus, the evidence of record does not support the applicant’s contention that his DD Form 214 indicates he had prior military service.  In this regard, it appears the applicant misinterprets this entry on his DD Form 214.

6.  The evidence of record shows that the applicant acknowledged he understood he would receive a discharge in keeping with the character of his service as decided by the officer designated to effect his separation from military service.  The evidence of record also shows that the separation authority approved the applicant’s separation under the provisions of Army Regulation 635-40, chapter 5, and directed the applicant be released from active duty with service uncharacterized.  Thus, the evidence of record does not support the applicant’s contention that he was informed he would receive an honorable discharge.

7.  The evidence of record shows that a separation will be described as an entry-level separation with service uncharacterized if separation action is initiated while a Soldier is in entry-level status (i.e., has not completed more than
180 days of creditable continuous active duty).

8.  The evidence of record shows that the applicant entered active duty on 30 June 1992, he was medically discharged on 25 November 1992, and had completed 4 months and 26 days (i.e., 146 days) of net active service during this period.  Thus, the evidence of record confirms the applicant was in an entry-level status and his character of service is correctly recorded "uncharacterized" on his DD Form 214.  Therefore, the applicant is not entitled to correction of the character of service recorded on his DD Form 214 with an effective date of 25 November 1992.

9.  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)                                         AR20080015987



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ABCMR Record of Proceedings (cont)                                         AR20080015987



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