IN THE CASE OF:	  

		BOARD DATE:	  25 May 2010

		DOCKET NUMBER:  AR20090018837 


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 uncharacterized discharge to an honorable discharge.

2.  The applicant states he went before a medical board after being injured in basic training and he was later released from the Army.  He claims to have been told he would receive an honorable discharge under medical conditions with no benefits; however, he received an uncharacterized discharge.  He would like his records corrected so he can be employed with a Government branch.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 July 1991.  He was assigned to Fort Benning, GA to attend basic training.

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he never advanced beyond the rank/grade of private (PV1)/E-1 while serving on active duty.  His record documents no acts of valor or significant achievement.

4.  On 5 August 1991, during his medical entrance examination, the applicant complained of pain in his left middle finger and indicated he received surgery on that finger a year prior to his entry on active duty.  He was subsequently diagnosed with left middle finger flexor adhesion requiring surgical intervention to correct and he was referred to an Entrance Physical Standards Board (EPSBD).

5.  On 15 August 1991, the applicant appeared before an EPSBD and he was found medically unfit for appointment or enlistment under existing medical fitness standards.  The opinion of the evaluating physician was the condition existed prior to service.  The EPSBD recommended the applicant be separated from the military.

6.  On 30 August 1991, the applicant concurred with the EPSBD proceeding and requested to be discharged without delay.  On 3 September 1991, the separation authority approved the applicant's discharge request, and on 9 September 1991, the applicant was discharged accordingly.  

7.  The DD Form 214 issued to the applicant upon his discharge shows he was discharged under the provisions Army Regulation 635-200 (Personnel Separations - Enlisted Separations), paragraph 5-11, by reason of failure to meet procurement medical fitness standards, and he received an "Uncharacterized" description of service.  This document also confirms that as of the date of his separation had completed 1 month and 14 days of active military service.

8.  There is no indication the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of or change of reason for his discharge within that board's 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-11 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 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 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 regulation will normally be honorable, but will be uncharacterized if the Soldier is in an entry level status.

10.  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 service 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to change his "uncharacterized" characterization of service to an honorable discharge has been carefully considered.  However, there is an insufficient evidentiary basis to support granting the requested relief.

2.  The evidence of record confirms the separation action was initiated on the applicant while he was in entry level status, prior to his completing 180 days of continuous active military service.  As a result, his service was appropriately described as "uncharacterized."  An honorable discharge may be granted only in cases that are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.  There are no such circumstances present in the applicant’s record.  As a result, a change to the characterization of his service to honorable is not warranted.

3.  The record shows his separation processing was accomplished in accordance with the applicable regulations.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  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.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20090018837



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ABCMR Record of Proceedings (cont)                                         AR20090018837



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