BOARD DATE:	  19 May 2010

		DOCKET NUMBER:  AR20090019825 


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 that her uncharacterized discharge be corrected to a medical discharge.

2.  The applicant states that while in initial entry training (IET), she started getting intense shooting pain coming from the area between her ankle and knee of her right leg.  When she informed her drill sergeant of this, she was sent to a doctor's office who informed her that she had a shin splint.  Her first sergeant then had her sign a couple of papers without explaining to her what she was signing, which resulted in her uncharacterized discharge.

3.  The applicant provides her 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's military records show she enlisted in the Regular Army on 14 September 1989.

3.  While in IET, the applicant was treated for pelvic pain, stomach pain, thigh pain, vomiting, constipation, muscle cramps, sore throat, leg pain, and knee pain.

4.  On 8 February 1990, the applicant was counseled on failing the Army Physical Fitness Test (APFT).

5.  On 13 February 1990, the applicant was again counseled on APFT failure.  In this counseling it stated that the applicant had the ability to pass the APFT if she wanted to, but the applicant stated that she was thinking about quitting the Army.

6.  On 8 March 1990, the applicant was counseled on her APFT failure.  In this counseling it stated that the applicant had only passed 1 of the 10 APFT's she had been given.  The counselor added that the applicant had been to sick call 12 times.

7.  On 9 March 1990, the applicant was counseled by her commander on his intent to recommend her discharge.  Her commander stated the reasons for his recommendation were the applicant's numerous APFT failures; her acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice; and disciplinary counseling for possession of contraband, possible malingering, and 13 trips to sick call.

8.  On the same day, the applicant's commander formally notified her of his intent to recommend her discharge for entry-level performance and conduct and of her rights in conjunction with that recommendation.  The applicant waived her rights. 
The applicant also stated that she did not desire a separation medical examination.

9.  The applicant's commander then forwarded his recommendation to discharge the applicant and that recommendation was approved by the appropriate authority.

10.  Accordingly, on 15 March 1990, the applicant was given an uncharacterized discharge for entry-level status performance and conduct.

11.  In 1982 the Department of Defense directed the various military departments to implement a new separation program effective 1 October 1982.  This program essentially provides for the separation in an entry-level status of new personnel who are recommended for separation during their initial 180 days of service, usually due to their inability to complete their training.  These personnel will be granted an uncharacterized discharge unless they are being discharged for misconduct, wherein a discharge under other than honorable conditions is warranted.  An honorable discharge will be granted to personnel in an entry-level status only if their service is so outstanding as to warrant an exception to policy by the service secretary concerned.  Army Regulation 635-200 (Enlisted Separations), chapter 11, provides for entry-level status performance and conduct discharges for Army personnel.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEBD).  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.  Only those members determined to be physically unfit will be provided a medical (disability) discharge or retirement.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence or indication that the applicant was medically disqualified.  Further, the applicant stated that she did not want a separation physical examination.

2.  Without a finding of medical disqualification, she could not have been referred to an MEBD.  Without an MEBD, she could not have been referred to a PEB.  Without a PEB, she could not receive a medical discharge.

3.  Since the applicant was unable to pass the APFT, her separation for entry-level status performance and conduct would appear appropriate.

4.  In view of the foregoing, there is no basis for granting the applicant's request.


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)                                         AR20090019825



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ABCMR Record of Proceedings (cont)                                         AR20090019825



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