BOARD DATE:	  	17 December 2009

		DOCKET NUMBER:  AR20090012336 


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 change of his uncharacterized discharge to a medical or an honorable discharge.  He also requests that his medical record be sent to him.

2.  The applicant states that he was a good Soldier and that he had a lot of medical problems after he enlisted in the Army.  He contends that he has not been able to work since he left the Army.

3.  The applicant provides no documentary evidence 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 enlisted in the Regular Army (RA) on 26 February 2001 for a period of 4 years.

3.  The facts and circumstances surrounding the applicant's discharge are not available.  However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that on 24 July 2001 he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations , chapter 11, by reason of entry level performance and conduct.  His character of service was uncharacterized.  He had completed 
4 months and 29 days of creditable active service.

4.  There are no medical records in the available records.

5.  On 6 November 2008, the Army Discharge Review Board (ADRB) denied the applicant's request for an honorable discharge.

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 (Entry Level Performance and Conduct) of this regulation provides for the separation of personnel due to unsatisfactory performance or conduct (or both) while in an entry level status.  This provision of regulation applied to individuals who had demonstrated inability, lack of reasonable effort, or failure to adapt to the military environment.  The regulation further states that entry level status is defined as the first 180 days of continuous active duty or the first 180 days of continuous active service after a break of more than 92 days of active service.  It further states that the character of service for members separated under the provisions of chapter 11 will be uncharacterized.  For the purposes of characterization of service, the Soldier's status is determined by the date of notification as to the initiation of separation proceedings.

7.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army Physical Disability Evaluation System, Soldiers who sustain or aggravate physically unfitting disabilities must meet several lines of duty criteria to be eligible to receive retirement and severance pay benefits.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

8.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

9.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits 
provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s separation was administratively correct and in conformance with applicable regulations.  

2.  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.

3.  There is also no evidence and the applicant did not provide any evidence that shows he was or should have been processed through the Physical Disability Evaluation System during his tenure of service.  As such, there is no basis for granting the applicant's request for a medical discharge.

4.  The applicant's request that his medical records be sent to him was noted.  However, there are no medical records in the available records.  Therefore, there is no basis for granting this portion of the applicant's requested relief.  The applicant is advised to seek further assistance concerning this issue through his local Department of Veterans Affairs (VA) office.

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)                                         AR20090012336



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ABCMR Record of Proceedings (cont)                                         AR20090012336



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