IN THE CASE OF:	  

		BOARD DATE: 	        23 June 2009

		DOCKET NUMBER:  AR20090001089 


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 corrected to either honorable or medical and to have all of his medals listed on his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states he was at the top of his platoon in basic training and a disability prevented him from finishing his military training.

3.  The applicant provides copies of his DD Form 214, a DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings), a Standard Form 88 (Report of Medical Examination), a Standard Form 93 (Report of Medical History), and virtually his entire official military personnel file.

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.  A 13 August 1993 Standard Form 93 for the purpose of enlistment shows the applicant had reconstructive surgery on his right anterior cruciate ligament (ACL) in 1991.  [WebMD describes the ACL as one of the knee ligaments that joins the upper leg bone with the lower leg bone.]

3.  The 13 August 1993 Standard Form 88 for the purpose of enlistment shows that the applicant had pain in the right knee and was unable to perform a knee walk; however, the orthopedic consultation found "no functional instability or symptoms."

4.  The applicant enlisted in the Regular Army and entered active duty on 10 November 1993.  He did not complete advanced individual training and was not awarded a military occupational specialty (MOS).

5.  On 14 January 1994, an EPSBD determined that the applicant's painful right knee prevented him from running or doing physical fitness training.  The EPSBD recommended that he be separated for not meeting medical fitness standards for enlistment.  The condition was determined to have existed prior to service and was not aggravated by his service.

6.  On 20 January 1994, the applicant concurred with the findings and requested immediate separation.

7.  The applicant was discharged on 28 January 1994 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-11, for not meeting procurement medical fitness standards.  He had 2 months and 19 days of creditable service.  The awards block of his DD Form 214 states "NONE."

8.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows lined-through entries in the awards block for the National Defense Service Medal, the Army Service Ribbon, and the marksmanship qualification badges for the M-16 rifle and hand grenade.  Neither of the marksmanship badges have a level of qualification listed and his record does not contain orders for any awards, medals, ribbons, or badges.

9.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-11 specifically provides 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.  A medical proceeding, 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 (Standards of Medical Fitness), chapter 3.  The characterization of service for Soldiers separated under this provision of the 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.  It further states that the character of service for members separated under the provisions of this chapter will be uncharacterized.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-2a(5)(b)(1) provides that disability compensation is not an entitlement acquired by reason of service-incurred or 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.

11.  Army Regulation 600-8-22 (Military Awards), as amended, provides the following:

	a.  the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 and 27 July 1954, 1 January 1961 and 14 August 1974, 2 August 1990 and 30 November 1995, and 11 September 2001 and a date to be determined;

	b.  the Army Service Ribbon was established by the Secretary of the Army on 10 April 1981.  This regulation states, in pertinent part, that effective 1 August 1981, all members of the Active Army, Army National Guard, and Army Reserve in an active Reserve status are eligible for the award upon successful completion of initial entry training.  The award may be awarded retroactively to those personnel who completed the required training before 1 August 1981 provided they had an Active Army status on or after 1 August 1981.  Enlisted Soldiers will be awarded this ribbon upon successful completion of their initial MOS-producing course.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's right knee problem was noted on his entrance medical examination and was severe enough at that time to prevent him from knee walking.

2.  His knee problem apparently continued to be a significant problem to the point that he was placed before an EPSBD within 2 months of entry onto active duty.

3.  There is no documentation to show any secondary injury to the knee while on active duty or that his limited period of service aggravated the condition beyond its normal progression.

4.  Although the applicant only served on active duty for a little over 2 months, he is authorized award of the National Defense Service Medal for that service.  It is appropriate to correct the record to reflect this award.

5.  The applicant did not complete his MOS training and there is no documentation to show he qualified for any marksmanship badges.  Therefore, these entries on his DA Form 2-1 were properly deleted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  __X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he was authorized award of the National Defense Service Medal.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends 

denial of so much of the application that pertains to changing his characterization of service or award of any additional award, decoration, medal, or badge.



      ___________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)                                         AR20090001089



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ABCMR Record of Proceedings (cont)                                         AR20090001089



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