IN THE CASE OF:	

		BOARD DATE:	  29 December 2009

		DOCKET NUMBER:  AR20090013286 


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, correction of her records to show she received an honorable discharge instead of an uncharacterized discharge.  She also requests a personal appearance.

2.  The applicant states that the Department of Veterans Affairs (DVA) records show she has an uncharacterized discharge; however, she has a document signed by a VA officer that shows she received an honorable discharge.  She also states that she received an injury to both of her legs during basic training.  She was required to climb a log wall as fast as possible; however, as she landed, her knees locked which caused what was later determined to be hairline fractures from her ankles to the hips.  She later had X-rays that show stress cracks in both legs; however, there was no record of the injury.  She adds that she had since received another injury to her left leg which started as a simple strain but quickly turned into reflexive sympathetic dystrophy.  In the X-rays of her foot and leg, hair line cracks from the previous injury can be detected.  She adds that she will produce medical documentation if necessary.  Due to these issues, weakened from the original injuries, she has much difficulty running and standing for long periods of time.

3.  The applicant provides a copy of a letter from a DVA service officer, dated
25 June 1998, in support of her request.




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 records show she enlisted in the Regular Army (RA) for a period of 2 years and 24 weeks on 12 November 1991 and she subsequently completed basic combat training at Fort Leonard Wood, MO.  She was reassigned to Fort Sam Houston, TX, on or about 9 April 1992, for completion of her advanced individual training in military occupational specialty (MOS) 91B (Medical Specialist).

3.  On 7 February 1992, the applicant failed a diagnostic Army Physical Fitness Test (APFT).  She was counseled by her platoon sergeant and she was placed on a remedial physical training (PT) program in addition to the regularly scheduled company PT sessions.

4.  On 25 March 1992, the applicant failed a record APFT.  She failed the sit-up and the run events of the APFT.  She was again counseled by her platoon sergeant and she was continued on the remedial PT program.

5.  On 2 April 1992, the applicant was counseled by her platoon leader regarding her APFT failure.

6.  On 10 April 1992, the applicant failed yet another record APFT and she was again counseled by her platoon sergeant.

7.  On 16 April 1992, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against her under the provisions of chapter 11 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) by reason of failing to meet the prescribed APFT standards required for her training course.  He further recommended an entry level separation.


8.  On 16 April 1992, the applicant acknowledged receipt of the separation notification in accordance with chapter 11 of Army Regulation 635-200.  She acknowledged that she understood if the request for discharge was approved, she would receive an entry level separation with uncharacterized service.  She further acknowledged that she had received adequate counseling and rehabilitative measures concerning her inability to become a productive member of the armed forces and that she did not feel any amount of counseling would allow her to overcome the deficiencies forming the basis of her discharge action.

9.  On 16 April 1992, the immediate commander initiated separation action against the applicant in accordance with chapter 11 of Army Regulation 635-200 for failure to meet APFT standards.  The immediate commander indicated that the applicant had no potential for useful service under full mobilization and he again recommended an entry level separation.

10.  On 16 April 1992, the separation authority waived the rehabilitation requirements and approved the applicant's discharge from the Army under the provisions of chapter 11, Army Regulation 635-200.  Accordingly, the applicant was discharged on 28 April 1992.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued confirms she was discharged due to entry level status performance and conduct in accordance with chapter 11 of Army Regulation 635-200 with an uncharacterized character of service.  She completed 5 months and 17 days (167 days) of creditable active military service.

11.  The applicant submitted a copy of a letter from a DVA service officer who listed her character of service as honorable.

12.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of her discharge within that board’s 
15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of this regulation sets policy and provides guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in entry level status.  It states in pertinent part that when separation of a member in entry level status is warranted by unsatisfactory performance or minor disciplinary infractions (or both) as evidenced by inability, lack of reasonable effort, or failure to adapt to the military environment, the member normally will be separated per this chapter.  This separation policy applies to enlisted members of the Regular Army, who have completed no more than 180 days active duty on current enlistment by the date of separation, have demonstrated that they are not qualified for retention for one 
or more of the following reasons: Cannot or will not adapt socially or emotionally to military life; cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline; have demonstrated character and behavior characteristics not compatible with satisfactory continued service; or failed to respond to counseling.

14.  Chapter 3 of this regulation describes the different types of characterization of service.  It provides in pertinent part that an uncharacterized separation is an entry-level separation.  A separation will be described as an entry-level separation if processing is initiated while a member is in an entry-level status, except when the characterization of under other than honorable condition is authorized or when the Secretary of the Army, on a case-by-case basis, determines that a honorable discharge is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.  For RA Soldiers, entry-level status is the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break in service of more than 92 days of active military service.

15.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  Paragraph 2-11 (ABCMR hearings) states that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the characterization of service on her DD Form 214 should be changed from "uncharacterized" to "honorable."

2.  The applicant’s request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

3.  There is no evidence in the applicant's records and the applicant did not provide any evidence that shows she was injured during basic training, that she 
was treated at a military hospital, or that her discharge was a result of any injuries.  The evidence of record indicates the applicant failed to meet the prescribed standards for completion of her MOS training by failing several APFTs.  Accordingly, her immediate commander initiated separation action against her.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects her military service at that time.

4.  By regulation, a separation will be described as an entry-level separation if processing is initiated while a member is in an entry-level status, except when the characterization of under other than honorable condition is authorized or when the Secretary of the Army, on a case-by-case basis, determines that a honorable discharge is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.  In the applicant's case, her separation processing was initiated while she was in an entry-level status.  She entered active service on 12 November 1991 and her separation action was initiated 156 days later, on 16 April 1992.

5.  During the first 180 days of continuous active military service, a member's service is under review.  When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant an under other than honorable conditions discharge.  An honorable characterization may be given only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and it is approved by the Secretary of the Army.

6.  An entry-level separation is given regardless of the reason for separation.  An uncharacterized discharge is neither positive nor negative; it is not "derogatory."  It simply means the Soldier did not serve long enough to qualify for a specified characterization of service.

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)                                         AR20090013286



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ABCMR Record of Proceedings (cont)                                         AR20090013286



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