IN THE CASE OF:	  

		BOARD DATE:	  	  16 April 2009

		DOCKET NUMBER:  AR20080017959 


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 upgraded to a medical discharge.

2.  The applicant states, in effect, he was issued his DD Form 214 (Certificate of Release or Discharge from Active Duty) prior to his discharge from the US Army for a medical condition.  

3.  The applicant provides a copy of a DD Form 214, a copy of Orders Number D253-27, dated 19 December 1989, and a copy of a memorandum from the US Total Army Personnel Command (now know as the Human Resources Command) 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 record shows he enlisted in the United States Army Reserve (USAR) for a period of 8 years.  On 3 March 1988, he was ordered to active duty for the purpose of completing initial active duty for training (IADT).

3.  The applicant's records do not contain any documentation which shows that the applicant was seen by medical authorities or was recommended to appear before medical board for any medical problems while he was on active duty.  

4.  On 29 June 1988, the applicant was relieved from IADT and transferred to his Reserve unit, the 597th Supply Company, Fort Buchanan, Puerto Rico, after completing a total of 3 months and 27 days active military service. 

5.  The applicant's record contains a properly constituted DD Form 214 which was authenticated by the applicant’s signature.  Item 12b (Separation Date this Period) of the applicant's DD Form 214 shows he was separated from active duty on 29 June 1988.  Item 23 (Type of Separation) shows he was relieved from ADT. Item 24 (Character of Service) shows that his character of service was "uncharacterized."  Item 25 shows that the applicant was released from ADT under the provisions of Paragraph 4-2, Army Regulation 635-200, by reason of expiration term of service.  

6.  The applicant's record's contains an Optional Form 275 (Medical Report) dated 25 May 1989, which states that the applicant was an Army Reservist who sustained an injury to his lower back with radiation to the left lower extremity consistent with the diagnosis of herniated nucleus pulposus.  The medical reports states the applicant was seen at the Eisenhower Army Hospital in September 1988 and while there underwent an L5-S1 discectomy.  The medical report states that the applicant was unable to return to duty after approximately 4 months and the subjective complaints were disproportionate to physical findings; therefore, he elected to appear before a Medical Evaluation Board (MEB). 

7.  On 29 May 1989, the applicant underwent an MEB for lower back pain, status post successful left L5-S1 discectomy, minimal residual left S1 radiculopathy as exhibited by absent left ankle jerk; and subjective low back pain disproportionate to objective findings consistent with symptoms amplification.  The MEB recommended the applicant be referred to a Physical Evaluation Board (PEB).    

8.  On 13 December 1989, the PEB found that the applicant was physically unfit due to a intervertebral disk syndrome, status post discectomy, left L5-S1 in September 1988 with normal lumbar spine motion, no sciatic nerve radiculitis; with persisting back pain and post-operative absent ankle jerk.  The applicant was recommended for separation with severance pay and was granted a 20 percent disability rating.  The applicant concurred with the findings and recommendations of the board.
9.  The applicant submitted a copy of Orders Number D253-27, US Army Total Army Personnel Command, St. Louis, MO, dated 19 December 1989, which shows he was discharged honorably with severance pay, provided he had completed 6 months of active duty service from the USAR effective 4 January 1990, with a 20 percent disability rating.

10.  The applicant submitted a copy of a memorandum from the US Total Army Personnel Command, Alexandria, VA, dated 19 December 1989, which stated, in pertinent part, that the applicant was entitled to severance pay if he has completed at least 6 months of active duty service.  He was credited with 
00 years, 02 months, and 26 day of active duty service.  

11.  Army Regulation 635-5 (Personnel Separation-Separation Documents) prescribes the separation documents that must be prepared for Soldiers.  It states, in pertinent part, that a DD Form 214 will be prepared for all personnel at the time of their retirement, discharge or release from Active Army.  

12.  Army Regulation 635-40, (Physical Evaluation for Retention, Retirement, or Separation), provides that a Soldier may be separated with severance pay if the Soldier's disability is rated at less than 30 percent, if the Soldier has less than 
20 years of service as defined in 10 USC 1208 and if the Soldier's disability occurred in the line of duty and is the proximate result of performing active duty.

13.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 4, in pertinent part, provides for the separation or release from active duty upon termination of enlistment and other period of active duty or active duty for training.  Specifically, individuals of the USAR ordered to active duty who have completed less than 180 days of continuous active duty will have their service uncharacterized, even though they have completed IADT.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded from an uncharacterized to a medical discharge was carefully considered and found to be without merit.

2.  The evidence of record shows that the applicant began medical treatment for back injuries after returning to his reserve unit.  The evidence of record also shows that the applicant was in an entry level status at the time of his release from ADT on 29 June 1988.  Since the applicant had not completed 180 days of active service he was given an entry level discharge and transferred back to his USAR unit.  The evidence of record shows that his characterization of service he was given was correct.  
3.  Therefore, his records are correct as currently constituted and there is no basis to change the applicant's character of service as requested.

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)                                         AR20080017959





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ABCMR Record of Proceedings (cont)                                         AR20080017959



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