IN THE CASE OF:	  

		BOARD DATE:	        1 OCTOBER 2009

		DOCKET NUMBER:  AR20090006223 


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 item 24 (Character of Service) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to read "honorable" and that item 28 (Narrative Reason for Separation) be changed to read "entry-level separation."

2.  The applicant states, in effect, that he believes that his character of service and the reason for his discharge were improper.  He claims that at the time of his separation processing, he was not properly informed of the ramifications of an "uncharacterized" separation, which includes his ineligibility to receive benefits from the Department of Veterans Affairs (DVA).  He also states that he visited the local Army recruiter to seek information in regard to the entries contained in item 25 (Separation Authority), item 26 (Separation Code) and item 27 (Reenlistment Code) of his DD Form 214.  He states that the recruiter informed him that the separation code of JFT listed on his DD Form 214 means that he is unqualified for active duty-other, and that the reenlistment code of RE-3 means that a person is normally disqualified for reenlistment for continued Army service; however, the disqualification is waivable.  He further states that he requests that the Board review his military records to consider the physical training he endured during basic training that aggravated his health conditions which resulted in his discharge in order to change the uncharacterized discharge to an honorable discharge.

3.  The applicant provides the following documents in support of his application:  self-authored statement; National Personnel Records Center (NPRC) letter, dated 26 February 2009; DD Form 214; DD Form 4 (Enlistment/Reenlistment Document); DD Form 2246 (Applicant Medical Prescreening Form); Standard Form 93 (Report of Medical History); Standard Form 507 (Clinical Record); form letter, subject:  Response from Dial-a-Medic Call to MEPS [Military Entrance Processing Station], dated 14 January 1985; Standard Forms 600 (Chronological Record of Medical Care); Standard Form 513 (Consultation Sheet); DA Form 2496 (Disposition Form); DA Form 3349 (Physical Profile Board Proceedings); and DA Form 2-1 (Personnel Qualification Record).

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 official military personnel file contains a DD Form 4 that shows he initially enlisted in the U.S. Army Reserve Delayed Entry Program for a period of 8 years on 17 January 1985 and that he enlisted in the Regular Army for 4 years and entered active duty on 11 February 1985.  His record shows he never completed basic combat training and was never awarded a military occupational specialty.

3.  The applicant's record contains a Standard Form 600, dated 19 March 1985, which shows he suffered from Osgood-Schlatter disease, a condition that existed prior to his entering military service (EPTS).  It also contains a Standard 
Form 513, dated 26 March 1985, which also indicates his Osgood-Schlatter disease was an EPTS condition.  It also contains a DA Form 3349 and DA Form 2496 which are both dated 2 April 1985 and which show he suffered from bilateral Osgood-Schlatter disease and that he had a temporary "3" profile for his lower extremities pending completion of his medical board.

4.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, the record does include a DD Form 214 that shows he was discharged after completing a total of 2 months and 12 days of active military service under the provisions of paragraph 5-11, Army Regulation 635-200 (Personnel Separations), by reason of not meeting procurement medical fitness standards-no disability.  Item 24 of the DD Form 214 he was issued contains the entry "uncharacterized" and item 28 contains the entry "did not meet procurement medical fitness standards-no disability."  The DD Form 214 also shows he was assigned a separation program designator (SPD) code of JFT and a reentry eligibility (RE) code of RE-3.

5.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-9 contains guidance on entry-level 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 181 days of continuous active duty service.

6.  Paragraph 5-11 of the same regulation provides that Soldiers who are not medically qualified under procurement medical fitness standards when accepted for enlistment, or who became medically disqualified under these standards prior to entry on active duty, active duty for training, or initial entry training will be separated.  A medical proceeding conducted by an Entrance Physical Standards Board, 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 the time of enlistment, 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 will normally be honorable, but will be uncharacterized (entry-level status) if the Soldier has not completed more than 180 days of creditable continuous active duty service prior to the initiation of separation action.

7.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve (USAR).  Chapter 3 of that regulation prescribes basic eligibility for prior-service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.  RE-3 applies to persons who are disqualified for continued Army service, but the disqualification is waivable.

8.  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 states, in pertinent part, that the SPD code of KFS is the appropriate code to assign to Soldiers separated under the provisions of chapter 5, Army Regulation 635-200, members who did not meet procurement medical fitness standards.  The SPD/RE Code Cross Reference Table establishes RE-3 as the proper code to assign members separated with this SPD code.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his uncharacterized discharge be changed to an honorable discharge was carefully considered.  However, the evidence of record confirms that within his first 180 days of active service, the applicant's bilateral Osgood-Shatter disease, an EPTS condition that would have disqualified him from entry into service had it been detected during his enlistment processing, was discovered.

2.  Although the evidence of record does not include a separation packet, it does contain a properly constituted DD Form 214 that confirms he was discharged under the provisions of paragraph 5-11, Army Regulation 635-200, by reason of "did not meet procurement medical fitness standards-no disability" after serving for 2 months and 13 days.  It also confirms that his service was described as "uncharacterized" in item 23 and that the reason for his separation was "did not meet procurement medical fitness standards-no disability" in item 28.  Item 26 shows he was assigned an SPD code of JFT and item 27 shows he received an RE-3 code.  This DD Form 214 carries a presumption of government regularity in the discharge process.

3.  Absent evidence to the contrary, it is presumed all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  

4.  The applicant is advised that an uncharacterized discharge is not meant to be a negative reflection of a Soldier's military service.  It merely means that the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise.  As a result, there is no basis for granting the applicant's request for an honorable discharge.

5.  Furthermore, the DVA benefits are administered under policies and regulations created and implemented by that agency and are not within the purview of the Board.  Any questions regarding eligibility for DVA benefits should be addressed to that agency.



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.



      ___________XXX______________
                 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)                                         AR20090006223



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ABCMR Record of Proceedings (cont)                                         AR20090006223



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