IN THE CASE OF:	  

		BOARD DATE:	  24 June 2010

		DOCKET NUMBER:  AR20090020642 


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 his entry level separation with service uncharacterized be changed to a medical discharge.

2.  The applicant states he injured his left knee during basic training and he was unable to complete advanced individual training (AIT).

3.  The applicant provides no additional 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's military personnel records show he enlisted in the U.S. Army Reserve on 30 December 1996 for a period of 8 years.  

3.  The applicant was ordered to report to initial active duty for training (IADT) on 9 June 1997.  He was ordered to attend approximately 9 weeks for basic training under the alternate (split) training program.

4.  A DD Form 220 (Active Duty Report) shows the applicant entered active duty on 9 June 1997 and he departed from his duty station to return home on 
15 August 1997.  According to the information on this form he completed basic training.

5.  On 8 May 1998, the applicant was ordered to active duty for the AIT portion of his IADT on 23 June 1998 for approximately 13 weeks or to completion of his military occupational specialty (MOS) training.

6.  On 9 July 1998, the applicant's orders for AIT were rescinded (reason not a matter of record).

7.  On 23 July 1998, the applicant's unit commander completed a DA Form 4856 (General Counseling Form).  The commander recommended that the applicant be discharged in an entry-level status due to the applicant had quit drilling with the unit and initiated a request to cancel his AIT.  The commander also stated he did not conduct an interview with the applicant because the applicant no longer drilled with the unit.

8.  A memorandum, dated 8 December 1997, from the applicant's unit commander was sent certified mail and the applicant signed for receipt on 
12 December 1997.  The unit commander notified the applicant he was absent from the scheduled multiple unit training assembly on 6 and 7 December 1997.  The unit commander also notified the applicant he had accrued four unexcused absences within a 1-year period.

9.  A memorandum, dated 14 January 1998, was sent to the applicant by certified mail.  The applicant's unit commander notified the applicant he was absent from the scheduled multiple unit training assembly on 10 and 11 January 1998.  The unit commander also notified the applicant he had accrued eight unexcused absences within a 1-year period.  The applicant signed for receipt on 22 January 1998.  

10.  Headquarters, 81st Regional Support Command, Birmingham, AL Orders 243-41, dated 31 August 1998, show the applicant was discharged from the USAR while in an entry level status with uncharacterized service (reason not a matter of record).

11.  The applicant's service medical records were not available for review.

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 based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness) 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his entry level separation with service uncharacterized should be changed to a medical discharge because of a knee injury he received in basic training.

2.  The applicant's DD Form 220 shows he completed a period of active service from 9 June 1997 to 15 August 1997 during which time he completed basic training.  This form does not contain any entries that show the applicant was injured during this period of active duty or while attending basic training.

3.  The applicant's service medical records were not available for review.

4.  There is no evidence of record and the applicant has not submitted any evidence that shows he had a medical condition which would have warranted him being considered by an MEBD.  Without an MEBD, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or retired for physical unfitness.

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)                                         AR20090020642



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ABCMR Record of Proceedings (cont)                                         AR20090020642



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