IN THE CASE OF:	

		BOARD DATE:	  27 April 2010

		DOCKET NUMBER:  AR20090018700 


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 upgrade of his character of service from "uncharacterized" to a "general" or a "medical" discharge.

2.  The applicant states he was discharged due to a medical condition that he developed and aggravated during his military service.  This happened during his basic combat training at Fort Lee, VA, when he had muscle spasms due to training.  He did not go to the doctor at the time because he was too young for such a severe condition and because he was previously told by the doctor that every time he had low back pain, he would have spasms.  He then enlisted in the Regular Army (RA) in June 2006 and he was sent to Fort Sill, OK.  He complained of low back pain at the time and his doctors determined that he had a bulging disc.  He was placed in a medical hold status until he was discharged with an uncharacterized discharge.  He is now receiving service-connected disability compensation from the Department of Veterans Affairs (DVA).

3.  The applicant provides a copy of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 18 June 2006; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated
30 October 2006; a copy of his DD Form 368 (Request for Conditional Release), dated 8 June 2006; a copy of a medical report, dated 5 June 2009; and a copy of page 2 of his DVA rating decision, dated on or around March 2009.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Puerto Rico Army National Guard (PRARNG) on 23 May 2002.  He was discharged from the PRARNG and as a Reserve of the Army on 8 February 2003.  He again enlisted in the PRARNG on 24 April 2004 and held military occupational specialty (MOS) 92F (Petroleum Supply Specialist).  He was honorably discharged from the PRARNG and as a Reserve of the Army on 18 June 2006.

2.  His records show he enlisted in the RA for a period of 3 years on 19 June 2006 and was subsequently assigned to Fort Sill for completion of advanced individual training in MOS 13D (Field Artillery Automated Tactical Data Systems Specialist).

3.  The facts and circumstances leading to his discharge are not available for review with this case.  Specifically, his service record is void of the DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings) which would have shown if and when he underwent an entrance physical examination, his diagnosis, the attending physician's recommendation, approval of the EPSBD, the applicant's concurrence, and action by the discharge authority.

4.  His record contains a properly-constituted DD Form 214 that shows he was discharged on 30 October 2006 under the provisions of Army Regulation
635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), paragraph 5-11, by reason of failure to meet procurement medical fitness standards, with a character of service of uncharacterized.  This form also shows he completed 4 months and 12 days of net active service this period and he had a total of 5 months and 12 days of total prior active service, for a total of
9 months and 24 days of total creditable active service.

5.  He submitted a copy of a medical report, dated 5 June 2009, that shows he was diagnosed with a multi-level mild discogenic disease.  He also submitted a copy of his undated DVA rating decision that shows he was awarded service- connected disability compensation for low back strain, lumbar discogenic disease.

6.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 5-11 specifically 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 EPSBD,
regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within six 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.  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.

8.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, U.S. Code, chapter 61 and Department of Defense Directive (DODD) 1332.18.  It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  Soldiers are referred into the PDES system when it is determined that they did not meet physical standards for enlistment, appointment and/or induction in accordance with Army Regulation 40-501, chapter 2, or they no longer meet medical retention standards in accordance with Army Regulation  40-501, chapter 3.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his character of service should be upgraded from "uncharacterized" to a "general" or a "medical" discharge.

2.  The facts and circumstances of the applicant's discharge are not available for review with this case.  However, his record contains a properly-constituted
DD Form 214 that shows he was discharged under the provisions of Army Regulation 635-200, chapter 5-11, by reason of failure to meet procurement medical fitness standards, with a character of service as "uncharacterized."

3.  It appears that he was found medically unqualified for service immediately after reporting to Fort Sill.  It also appears that the EPSBD proceedings established that he suffered from a disqualifying medical condition that existed prior to his service.  Because this condition was presumably identified within his first 180 days of service, his discharge was appropriately characterized as uncharacterized based on his entry-level status.  In the absence of evidence to the contrary, it must be presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.

4.  Because of the lack of documentation and the submission of incomplete documents, it is not possible to say if the applicant had back pain prior to his enlistment.  It is unknown if he had any back pain during his initial entry training in 2004.  His MRI showing mild discogenic disease and his VA rating of 10 percent are not highly suggestive of a failure to meet retention standards.  In other words, there is evidence to show he failed to meet accession standards in 2006.

5.  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 conditions is authorized or when the Secretary of the Army, on a case-by-case basis, determines that an honorable discharge is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.

6.  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.

7.  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 to grant him the requested relief.

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)                                         AR20090018700



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ABCMR Record of Proceedings (cont)                                         AR20090018700



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