IN THE CASE OF:	  

		BOARD DATE:	  15 July 2010

		DOCKET NUMBER:  AR20100000221 


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 change of his character of service from uncharacterized to honorable and change of his narrative reason for separation from entry level status to medical.

2.  The applicant states, in effect, the pain and anxiety caused by injuries he incurred while attending basic combat training prevented him from being able to focus and perform physical tasks, which resulted in his early separation.  He contends he still has not recovered from these injuries and suffers from severe pain at times.  His medical issues include:

* injured Achilles tendon
* fractured ankle
* Plantar Fasciitis
* strained and torn ligaments in ankle

3.  The applicant provides copies of:

* his DD Form 4/1 (Enlistment/Reenlistment Document - Armed Forces of the United States)
* three DA Forms 5181-R (Screening Note of Acute Medical Care), dated 19 November 1991, 11 December 1991, and 8 January 1992
* his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 28 April 1992


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 record shows he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 3 July 1991 for a period of 8 years.  On
29 October 1991 he was discharged from the USAR DEP and he enlisted in the Regular Army (RA) on 30 October 1991 for a period of 4 years.  On 28 April 1992, the applicant was discharged from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
11-3a, by reason of entry level status performance and conduct.  He completed
5 months and 29 days of active service.  The highest rank/grade he attained during his military service was private (PV1)/E-1.

3.  The applicant's record contains a Standard Form (SF) 88 (Report of Medical Examination), dated 30 October 1991, that was conducted at the time of his enlistment in the RA.  The examination shows he had an abnormality in his feet at the time of his enlistment that was diagnosed as mild pes planus [also known as flat feet or fallen arches] with no symptoms reported by him.

4.  The applicant's record contains (and he also provides) three DA Forms 
5181-R documenting his visits to Troop Medical Clinic Number 4 located at Fort Knox, KY.  The dates of his visits and pertinent information are as follows:

	a.  19 November 1991, he complained of dull pain in his feet for 4 to 5 days and sharp pain in the little toe of his left foot for 3 days.  He denied any direct trauma as the cause of these conditions.  It was also noted he had tenderness in his Achilles tendons and discomfort wearing footgear, possibly due to Achilles tendonitis.  As a result, he was given lifts for his shoes, a 3-day profile allowing him to wear soft shoes, and restricting him from running or jumping. 

	b.  11 December 1991, he complained of dull pain in his feet for 2 weeks.  He also stated he twisted his right ankle during a road march the day prior.  It was noted he had slight swelling and tenderness in his right ankle; possibly due to ligament strain.  As a result, he was prescribed Motrin and an analgesic balm to relieve the pain, tenderness and swelling.  He was also given a 3-day profile restricting him from running, jumping, or marching.

	c.  8 January 1992, he complained of sharp pain in his feet since the day prior.  It was noted he had swelling and tenderness in the plantar aspects [arches] of his feet; possibly due to Plantar Fasciitis.  As a result, he was prescribed Indocin to relieve the pain, tenderness, and swelling.  He was also given a profile restricting him to activities consistent with crutches and permitting him to wear soft shoes.

5.  On 15 January 1992, the applicant completed basic combat training at Fort Knox and began travelling to Fort Sam Houston, TX for attendance at advanced individual training (AIT) for military occupational specialty (MOS) 91B (Medical Specialist).

6.  The applicant's record contains three DA Forms 4856 (Developmental Counseling Form) rendered to document counseling sessions that occurred during his AIT.  The dates and synopses of these counseling sessions are as follows:

	a.  12 March 1992, he received counseling on the standards of conduct and appearance required for successful completion of AIT.

	b.  1 April 1992, he received counseling on his deficient duty performance, conduct, and overall behavior which could result in disciplinary action under the Uniform Code of Military Justice (UCMJ) or his administrative separation.  The specific deficiencies were as follows:

		(1)  his inability to handle his personal problems in an effective manner interfered with his ability to become a satisfactory Soldier;

		(2)  his inability to maintain a passing academic average; and

		(3)  his demonstrated character and behavior characteristics not compatible with satisfactory continued service.

	c.  3 April 1992, he received counseling on his deficient duty performance, conduct, and overall behavior which resulted in the initiation of his administrative separation under the provisions of Army Regulation 635-200, chapter 11.  The specific deficiencies were as follows:

		(1)  his inability to handle his personal problems in an effective manner interfered with his ability to become a satisfactory Soldier;

		(2)  his failure to perform up to academic standards, as demonstrated by failing tests; and

		(3)  his demonstrated character and behavior characteristics not compatible with satisfactory continued service.

7.  On 7 April 1992, the applicant’s company commander notified him that she was initiating action to separate him from the Army under the provisions of Army Regulation 635-200, chapter 11, for entry level performance and conduct.  The commander specifically cited the reasons for this action as the applicant's lack of motivation to become a productive Soldier.  She also informed the applicant that she was recommending the applicant receive an entry level separation.  The unit commander informed the applicant that the proposed separation could result in discharge from the Army.  The unit commander continued by advising the applicant of his rights to consult with legal counsel and to submit written statements in his own behalf.

8.  The applicant acknowledged that he had been afforded an opportunity to consult with counsel and his understanding that he would receive an uncharacterized discharge.  He declined this right to consult with legal counsel, but elected to submit a statement in his own behalf.  The applicant also acknowledged his understanding that he would be ineligible to apply for reentry in the U.S. Army for a period of two years after discharge and declined receiving a copy of his discharge packet.

9.  The applicant’s company commander recommended that he be separated from the Army under the provisions of Army Regulation 635-200, chapter 11, prior to the expiration of his term of service with the issuance of an entry level separation with an uncharacterized characterization of service.

10.  The applicant rendered a letter wherein he stated he had experienced a great deal of grief during the past month as a result of his mother's death.  He contended depression took over his emotions and his depression was 

compounded when he was informed he would be dropped from AIT.  He stated he knew that if he did not go home soon, he was liable to mess up his future.  He said he needed the love and strength his wife and family had to offer.  In closing, he stated he was ready to get his life back together with hopes of returning to the Army later to pursue his future.

11.  The separation authority approved the unit commander's request and directed the applicant's separation under the provisions of Army Regulation
635-200, chapter 11 with an entry level separation.

12.  Headquarters, Fifth U.S. Army, Fort Sam Houston, Orders 77-119, dated 21 April 1992, show the applicant was reassigned to the U.S. Army Separation Transition Point for transition processing with a reporting date and discharge date of 28 April 1992.

13.  On 28 April 1992, the applicant was discharged accordingly.  Block 24 (Character of Service) of the applicant's DD Form 214 shows that he received an "Uncharacterized" characterization of service.  Block 25 (Separation Authority) shows that he was discharged under the provisions of Army Regulation 635-200, chapter 11.  Block 28 (Narrative Reason for Separation) shows "Entry Level Status."

14.  The applicant's record is devoid of any evidence and he has not provided any evidence of any specific injury or medical condition that would have rendered him unfit for continued service.  Additionally, there is no indication in the applicant's records that he underwent a medical evaluation with subsequent referral to a medical evaluation board (MEB) or referral to a physical evaluation board (PEB).

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of this regulation, in effect at the time, provided for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry level status.  This provision of regulation applied to individuals who had demonstrated that they were not qualified for retention because they could not adapt socially or emotionally to military life, or because they lacked the aptitude, ability, motivation, or self discipline for military service, or they had demonstrated characteristics not compatible with satisfactory continued service.  The separation policy applied to Soldiers who could not meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline.  The regulation required an uncharacterized description of service for separation under this chapter.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and 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.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their 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.

17.  Chapter 61, Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency (USAPDA), under the operational control of the Commander, U.S. Army Human Resources Command, Alexandria, VA (USAHRC-Alexandria), is responsible for operating the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in Title 10, U.S. Code, chapter 61, and in accordance with Department of Defense Directive 1332.18 (Separation or Retirement for Physical Disability) and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  Soldiers enter the PDES in four ways:

	a.  Referred by an MEB.  When a Soldier has received maximum benefit of medical treatment for a condition that may render the Soldier unfit for further military service, the medical treatment facility conducts an MEB to determine whether the Soldier meets the medical retention standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  If the Soldier does not meet medical retention standards, he or she is referred to a PEB to determine physical fitness under the policies and procedures of Army Regulation 635-40;

	b.  Referred by the MOS/Medical Retention Board (MMRB).  The MMRB is an administrative screening board the chain of command uses to evaluate the ability of Soldiers with permanent 3 or 4 medical profiles to physically perform in a worldwide field environment in their primary military occupation specialty.  Referral to an MEB/PEB is one of the actions the MMRB convening authority may direct; 

	c.  Referred as the result of a fitness for duty medical examination.  When a commander believes a Soldier is unable to perform MOS-related duties due to a medical condition, the commander may refer the Soldier to the medical treatment facility for evaluation.  If evaluation results in an MEB and the MEB determines that the Soldier does not meet medical retention standards, the Soldier is referred to a PEB; and 

	d.  Referred as a result of Headquarters Department of the Army action.  The Commander, USAHRC, upon recommendation of The Surgeon General, may refer a Soldier to the responsible medical treatment facility for medical evaluation as described above.  USAHRC also directs referral to a PEB when it disapproves the MMRB recommendation to reclassify a Soldier to a different MOS.

18.  Army Regulation 635-40, in pertinent part, provides that Soldiers enter the PDES under the presumption they are physically fit.  This is known as the Presumption of Fitness Rule which states a Soldier is presumed fit because of continued performance of military duty up to the point of separation for reasons other than physical disability.  The philosophy behind the rule is that military disability compensation is for career interruption, compensation for service-incurred conditions.  Application of the Presumption of Fitness Rule does not mandate a finding of unfit.  The presumption is overcome if the preponderance of evidence establishes the Soldier, because of disability, was physically unable to perform adequately the duties of his/her office, grade, rank or rating.  This circumstance is aimed at long-term conditions.  It may also be overcome if acute, grave illness or injury, or other deterioration of the Soldier's physical condition occurred immediately prior to, or coincident with, processing for separation or retirement for reasons other than physical disability which rendered the Soldier unfit for further duty.  Future duty is a factor in this circumstance.

19.  Once an MEB determines the Soldier fails medical retention standards, the Soldier is referred to a PEB.  The PEB initially conducts an informal adjudication. This is a records review of the MEB and applicable personnel documents without the Soldier present.  The informal decision is forwarded to the Physical Evaluation Board Liaison Officer (PEBLO) for counseling of the Soldier.  If after counseling, the Soldier concurs with the findings, the case is forwarded to the USAPDA to accomplish disposition.  If the Soldier disagrees with the findings, he/she has the right to submit a rebuttal for reconsideration and the right to elect a formal hearing.  At the time of election for a formal hearing, the Soldier may also elect to appear or not appear, and to be represented by the regularly appointed military counsel or to have counsel of his choice at no expense to the government.  He/she may also request essential witnesses to testify in his/her behalf.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected by changing the narrative reason for his uncharacterized entry level status discharge to a medical discharge with an honorable characterization of service was carefully considered and determined to lack merit.

2.  Evidence shows the applicant had flat feet at the time of his enlistment, but informed the examining physician he did not suffer from any symptoms typically associated with this condition.

3.  Evidence shows the applicant attended sick call on three occasions regarding his flat feet and he was issued three temporary physical profiles while attending basic combat training.  However, his record is devoid of any evidence and he has not provided any evidence of any specific injury or medical condition that would have rendered him unfit for continued service.  Additionally, there is no indication in his records that he underwent a medical evaluation with subsequent referral to an MEB or a PEB.

4.  Evidence shows the applicant was counseled on numerous occasions regarding the adverse impact of missing required training and failing to meet minimum standards.  The applicant's chain of command made numerous attempts to rehabilitate him, yet he failed to respond.

5.  Evidence shows the applicant was informed, in writing, that he would receive an entry level separation with an uncharacterized characterization of service and of the potential difficulties that a discharge of this nature could have on his future employment.

6.  In the absence of any medical evidence to the contrary, administrative regularity is presumed in the applicant's separation process.  Furthermore, the applicant has failed to overcome the presumption of fitness.  The presumption is overcome if the applicant can show, through a preponderance of evidence, that because of a disability, he was physically unable to perform adequately the duties of his office, grade, rank or rating prior to his separation from 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 for granting the applicant's request for an honorable discharge.


8.  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)                                         AR20100000221



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ABCMR Record of Proceedings (cont)                                         AR20100000221



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