IN THE CASE OF:	  

		BOARD DATE:	  27 January 2009

		DOCKET NUMBER:  AR20080017992 


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 description of service be changed to honorable.   

2.  The applicant states, in effect, that he has a severe service-connected disability for the same medical condition that he was discharged for and is requesting his service be characterized as honorable in order to qualify for State benefits.   

3.  The applicant provides a self-authored letter, dated 30 September 2008;  Department of Veterans Affairs (VA) rating decision, dated 13 March 2007; a Standard Form (SF) 513 (Medical Record - Consultation Sheet, dated
18 November 1988; and his separation document (DD Form 214) 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 that he enlisted in the Regular Army and entered active duty on 8 November 1988, and was assigned to Fort Knox, Kentucky, to attend basic armor training.  His record documents no acts of valor, significant achievement, or service warranting special recognition.   

3.  On 18 November 1988, an Entrance Physical Standards Board (EPSB) determined the applicant suffered from pes planus (flat feet) and did not meet medical entrance standards.  The applicant was not recommended for retention and the EPSBD findings and recommendation were approved by the appropriate medical authority.

4.  On 28 November 1988, the applicant concurred with the findings and recommendation of the EPSBD and requested to be discharged without delay.  

5.  On 5 December 1988, the separation authority approved the applicant's discharge under the provisions of paragraph 5-11, Army Regulation 635-200 (Personnel Separation – Enlisted Personnel), by reason of failure to meet medical fitness standards, with an uncharacterized description of service.  

6.  On 8 December 1988, the applicant was discharged under the provisions of paragraph 5-11, Army Regulation 635-200, by reason of not meeting medical procurement standards - no disability, with an uncharacterized character of service.  The DD Form 214 he was issued at the time shows he held the rank of private/E-1 (PV1) and had completed a total of 1 month and 1 day of active military service at the time of his discharge.  It further shows his service was described as uncharacterized

7.  The applicant provides an SF 513 that shows he reported to sick call on three consecutive days during his first week of training in November 1988 and was treated for bilateral foot pain, a pre-existing pes planus condition.  He also provides a VA rating decision, dated 13 March 2007, which granted him service- connection and a disability rating of 50 percent for his bilateral pes planus condition.  

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-9 contains guidance on ELS separations.  It states, in pertinent part, that a separation will be described as entry-level with service uncharacterized if at the time separation action is initiated, the Soldier has less than 180 days of continuous active duty service.
9.  Chapter 5 of the separations regulations contains the policies for separations for the convenience of the Government.  Paragraph 5-1 contains guidance on characterization of service of or description of service and states, in pertinent part, that Soldiers separated under this chapter will receive a description of service of uncharacterized if in an ELS.  Paragraph 5-11 provides guidance on the separation of personnel who did not meet procurement medical fitness standards.  It provides, in pertinent part, that members who were not medically qualified under procurement medical fitness standards when accepted for enlistment may be separated by an EPSBD if the condition is discovered within the first 6 months of active duty service.  A Soldier who is found after entry on active duty not to have been qualified under procurement medical fitness standards at the time of enlistment may request to be retained on active duty.  Soldiers not retained will be processed for separation.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his service description of uncharacterized should be changed to an honorable characterization of service so that he and his family can receive State benefits was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms that the applicant was separated while in an ELS as a result of not meeting procurement medical fitness standards after he concurred with the findings and recommendations of the EPSBD and requested immediate discharge.  The record confirms his separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  The record also shows the applicant received an uncharacterized description of service as a result of being separated while in an ELS.  A Soldier is in an ELS, or probationary period, for the first 180 days of continuous active duty.  An 
honorable characterization of service may be granted only in cases that are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.  There are no such circumstances present in the applicant’s record.  

4.  The medical treatment record and VA rating decision provided by the applicant were also carefully reviewed.  However, both these documents confirm only that he continues to suffer from the pre-existing pes planus condition that led to his discharge and provide no new or compelling evidence that would support a change to the reason for his discharge or the uncharacterized description of his service.  As a result, there is an insufficient evidentiary basis to support granting the requested relief in this case. 

5.  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)                                         AR20080017992



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080017992



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1