IN THE CASE OF:	  

		BOARD DATE:	    29 July 2010

		DOCKET NUMBER:  AR20090020713 


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 his discharge be changed to honorable and, in effect, that his medical disqualification be removed.

2.  The applicant states he received a medical waiver to enlist and then he was discharged for the same condition 1 week before he completed basic training.

3.  The applicant provides no supporting documentation.

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.  A 24 May 2001 DD Form 2808 (Report of Medical Examination) shows the applicant had difficulty with knee walking and pain on duck walking.  However, a waiver was recommended and approved for enlistment.  

3.  An enlistment packet was prepared showing enlistment in the Army Reserve on 13 June 2001.  No additional information on this enlistment is of record.  

4.  A second enlistment packet was completed and signed on 1 April 2003 under the Delayed Entry Program and the applicant enlisted in the Regular Army on      1 May 2003. 

5.  On 15 August 2003, the applicant was discharged and received an uncharacterized separation under the provisions of Army Regulation 635-200, paragraph 5-11 (Separation of Personnel Who Did Not Meet Procurement Medical Fitness Standards) 

6.  The applicant's integrated Personnel Electronic Records Management System (iPERMS) record does not contain any clarifying evidence in regard to the applicant's discharge.  

7.  Army Regulation 635-200, Chapter 5 sets forth the provisions for separations for the convenience of the government.  In pertinent part it states:

	a.  that unless the reason for separation requires a specific characterization, a Soldier being separated for the convenience of the Government will be awarded a character of service of honorable, under honorable conditions, or an uncharacterized description of service if in entry-level status.  No Soldier will be awarded a character of service under honorable conditions under this chapter unless the Soldier is notified of the specific factors in his service record that warrant such a characterization, using the notification procedure.  Such characterization is normally inappropriate for Soldiers separated under the provisions of paragraph 5-11; and

	b.  paragraph 5-11 states 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 entry on active duty or active duty for initial entry training may be separated.  Such conditions must be discovered during the first 6 months of active duty. 

8.  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.  Paragraph 2-9 states 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he received a medical waiver to enlist and then he was discharged for the same condition 1 week before he completed basic training.

2.  While the applicant received a waiver to enlist the waiver did not guarantee he would be retained on active duty if he could not perform the physical activities required in training.  It appears this occurred in this case.

3.  While the medical records for the applicant are not available, it reasonable to presume that the condition for which he received an entry waiver prevented him form being able to complete his training.  The applicant was found to not meet procurement medical physical standards within less than 3 months of entry onto active duty.  As such an uncharacterized separation was appropriate and proper. 

4.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his reason for separation.

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)                                         AR20090020713



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ABCMR Record of Proceedings (cont)                                         AR20090020713



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