IN THE CASE OF:	  

		BOARD DATE:	  26 August 2010

		DOCKET NUMBER:  AR20100008718


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 uncharacterized discharge be changed to a general discharge.

2.  The applicant states he completed his basic and advanced individual training (AIT) with no disciplinary action.  He could not continue his military career due to an injury.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 16 February 1993.

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 Regular Army on 16 October 1992 for a period of 4 years.  There is no evidence he completed AIT or that he was awarded a military occupational specialty.

3.  On 27 January 1993, the applicant was examined and diagnosed with mechanical low back pain, not improved with therapy.  The examiner found he did not meet procurement standards and he did not meet physical medical standards for retention.

4.   On 27 January 1993, a Medical Evaluation Board (MEB) found the applicant to be suffering from mechanical low back pain.  The MEB found the condition was not incurred while entitled to base pay, existed prior to service (EPTS), and was not permanently aggravated by service.  The MEB recommended separation for non-service aggravated, EPTS condition upon the Soldier's waiver of evaluation by a Physical Evaluation Board (PEB).

5.  The applicant indicated he did not desire to continue on active duty and he agreed with the MEB's findings and recommendation.

6.  On 27 January 1993, the applicant requested he be discharged for physical disability based upon the findings and recommendation of an MEB.  He acknowledged that he had been informed and understood that he was entitled to consideration of his case by a PEB.  He elected not to be considered by a PEB.  He acknowledged that if his request was approved he would be separated by reason of EPTS physical disability and he would receive a discharge in keeping with the character of his service as determined by the separation authority.

7.   The applicant's intermediate commanders recommended approval of his request and indicated he was not being considered for any other elimination proceedings.

8.  On 10 February 1993, the appropriate authority approved the applicant's request and stated an entry level status separation - uncharacterized was required.

9.  On 16 February 1993, the applicant was discharged by reason of Disability, Existed Prior to Service - Medical Board.  He had completed 4 months and 1 day of active service.  His service is shown as uncharacterized.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 5, states an enlisted Soldier may be separated for non-service aggravated EPTS condition when:

* he/she requests it
* he/she has been on active duty for more than 30 days
* he/she does not meet medical retention standards as determined by an MEB
* the disqualifying defect or condition existed prior to entry on current period of duty and has not been aggravated by such duty
* he/she waives a PEB evaluation

11.  The characterization of service under Army Regulation 635-40, chapter 5, may be honorable, under honorable conditions, or uncharacterized if in an entry level status.

12.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations) defines entry level status for Regular Army Soldiers as the first 180 days of continuous active duty or the first 180 days of continuous active following a break of more than 92 days of active military service.

13.  Army Regulation 635-200, paragraph 3-9, then in effect, stated a separation would be described as an entry level separation with service uncharacterized if processing was initiated while a Soldier was in entry level status, except in the following circumstances:

	a.  When characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case.

	b.  The Secretary of the Army, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.  This characterization is authorized when the Soldier is separated by reason of selected changes in service obligation, convenience of the Government, and Secretarial plenary authority.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his uncharacterized discharge should be changed to a general discharge.

2.  An MEB determined the applicant was not fit for retention due to his mechanical low back pain.  The applicant indicated he did not desire to remain on active duty.  The MEB recommended the applicant be separated for non-service aggravated, EPTS condition based on the applicant's waiver of an evaluation by a PEB.
3.  The applicant had completed less than 180 days of active service, placing him in an entry level status, thereby requiring issuance of an uncharacterized discharge.  His entire record of service was reviewed.  There were no unusual circumstances involving personal conduct and performance of duty that would warrant a characterization other than the characterization he received at the time of his discharge.

4.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, the type of discharge and the reason for separation were appropriate considering all the available facts of the case.

5.  in view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090011970



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ABCMR Record of Proceedings (cont)                                         AR20100008718



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