IN THE CASE OF:	  

		BOARD DATE:	       7 April 2009

		DOCKET NUMBER:  AR20080017427 


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 correction of his uncharacterized discharge to a medical discharge.

2.  The applicant states that he suffered the following conditions during recruit training:  bilateral medial tibial plateau stress fracture, left greater than right; focal stress fracture of the bilateral navicular bones and dorsum of each calcaneus; and patchy moderate stress reaction changes of the remainder of the bilateral ankles and midfeet.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 13 September 2004, and copies of various medical records, dated on miscellaneous dates in July and August 2004, in support of his 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 records show he enlisted in the U.S. Army Reserve on 27 May 2004.  He subsequently entered active duty for training on 30 June 2004, and reported to Fort Leonard Wood, MO, for basic combat training.  He was assigned to D Company, 2nd Battalion, 10th Infantry Training Brigade.

3.  On 27 July 2004, the applicant complained of pain in his knees.  He subsequently underwent a radiological examination where it was determined that there were no fractures or bony lesions identified in either knee and that the joint spaces and soft tissues were normal.

4.  On 10 August 2004, the applicant underwent a bone imaging/scan at the nuclear medicine department.  The radiologist indicated that the applicant’s impression/findings were those of bilateral medial tibial plateau stress fracture, left greater than right; focal stress fracture of the bilateral navicular bones and dorsum of each calcaneus; and patchy moderate stress reaction changes of the remainder of the bilateral ankles and midfeet.

5.  On 2 September 2004, the applicant underwent a series of counseling sessions by his chain of command as follows.

	a.  The applicant’s squad leader indicated that he was recommending the applicant for discharge under the Entry Level Separation (ELS) program of Army Regulation 635-200 (Personnel Separations) by reason of the applicant’s physical unfitness, lack of motivation, and an inability to catch up with his peers.  The squad leader also indicated that the drill sergeants exhausted all means to motivate the applicant.

	b.  The applicant’s Reserve Component Liaison noncommissioned officer also recommended the applicant’s discharge due to failing to adapt to the military lifestyle and lack of motivation.

	c.  The applicant’s first sergeant (1SG) indicated that he also was recommending the applicant’s discharge under the ELS program of Army Regulation 635-200 by reason of the applicant’s physical unfitness, lack of motivation, and an inability to catch up with his peers.  The 1SG also indicated that the unit drill sergeants exhausted all means to motivate the applicant.

	d.  The applicant’s immediate commander concurred with the recommendation to discharge the applicant for failure to meet minimum standards prescribed for successful completion of training due to lack of aptitude, ability, motivation, or self-discipline.

6.  On 7 September 2004, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 11 of Army Regulation 635-200 by reason of failure to adapt to military life and lack of discipline and the motivation necessary to complete basic combat training.

7.  On 7 September 2004, the applicant acknowledged receipt of the notification of separation action.  He was advised of the basis for his contemplated separation and its effects, the rights available to him, and the effects of a waiver of his rights.  He further acknowledged that Department of Veteran Affairs and other benefits normally associated with completion of active service would be affected.  He elected to waive his right to consult with counsel and elected not to make a statement or submit a rebuttal on his behalf.

8.  On 7 September 2004, the applicant’s immediate commander recommended the applicant be separated from the Army under the provisions of chapter 11 of Army Regulation 635-200 for failure to adapt to military life, failure to follow Army core values, and lack of self-discipline and motivation necessary to complete basic combat training.

9.  On 8 September 2004, the separation authority reviewed the proposed separation action, waived the requirement for a rehabilitative transfer, and approved an entry-level separation (uncharacterized) in accordance with chapter 11 of Army Regulation 635-200.  The applicant was accordingly discharged on 13 September 2004.  The DD Form 214 he was issued at the time of his discharge confirms he was discharged under the provisions of chapter 11 of Army Regulation 635-200 with a reason for separation of entry-level performance and conduct and an uncharacterized characterization of service.  This form further confirms that he completed a total of 2 months and 14 days of creditable active military service.

10.  Army Regulation 635-200 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 an entry-level status.  It states, in pertinent part, that when separation of a member in an 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 of active duty on current enlistment by the date of separation and 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.

11.  Chapter 3 of Army Regulation 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 conditions 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.

12.  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 office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  When a Soldier has received the maximum benefit of medical treatment for a condition that may render the Soldier unfit for further military service, the medical treatment facility (MTF) conducts a MEB to determine whether the Soldier meets the medical retention standards of Army Regulation 40-501, chapter 3.  If the medical evaluation board (MEBD) determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB).  Army Regulation 40-501 does not list stress fractures as cause for referral to a MEB.  

13.  Paragraph 3-1 provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

14.  Paragraph 3-2b provides for retirement or separation from active service.  This provision of the 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.

DISCUSSION AND CONCLUSIONS:

1.  With respect to the applicant's discharge, the evidence of record shows that the applicant demonstrated character and behavior characteristics not compatible with satisfactory continued service.  Furthermore, having completed less than the 180 days of military service, his character of service was appropriately and accurately reflected as uncharacterized.  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 his 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.  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.

3.  With respect to the applicant's contention that his discharge narrative reason should be changed to medical disability, there is insufficient evidence to show he should have been medically discharged by reason of disability.  There is no evidence that he was issued a permanent profile or that he underwent an MEBD and/or a PEB.  The Army must find that a Soldier is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the PDES.  The evidence of record indicates the applicant's medical conditions were all stress fractures or related to stress fractures.  According to the governing regulation, stress fractures are not listed as cause for referral to an MEBD.

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 did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.   The applicant has not shown error, injustice, or inequity for the relief he requests.

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.


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      _________________________
                 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)                                         AR20080017427



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ABCMR Record of Proceedings (cont)                                         AR20080017427



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