IN THE CASE OF:
BOARD DATE: 28 September 2010
DOCKET NUMBER: AR20100011027
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 narrative reason for separation be changed to "Entry Level Separation."
2. The applicant provides no explanation.
3. The applicant provides no documentary 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 20 November 2000 for a period of 3 years.
3. The facts and circumstances surrounding the applicants discharge are not contained in the available records. However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows on 18 January 2001 he was discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 5, for Disability, Existed Prior to Service (EPTS) - Medical Board. His character of service was uncharacterized. He had served 1 month and 29 days of creditable active service.
4. Item 25 (Separation Authority) on the applicant's DD Form 214 shows the entry "AR [Army Regulation] 635-40, CHAP [Chapter] 5." Item 26 (Separation Code) on his DD Form 214 shows the entry "KFN." Item 28 on his DD Form 214 shows the entry "DISABILITY, EXISTED PRIOR TO SERVICE - MEDICAL BOARD."
5. Army Regulation 635-40, chapter 5, provides for separation of an enlisted Soldier for non-service aggravated EPTS conditions when Soldier requests waiver of PEB evaluation. If the time period exceeds 6 months or if the condition is disqualifying under Army Regulation 40-501, chapter 3, a Soldier is entitled to evaluation by a PEB or may waive evaluation under this chapter. The regulation requires that the Soldier is eligible for referral into the disability system; the Soldier does not meet medical retention standards as determined by the medical board; the disqualifying defect or condition existed prior to entry on current period of duty and has not been aggravated by such duty; the Soldier is mentally competent; knowledge of information about his/her medical condition would not be harmful to the Soldiers well being; further hospitalization or institutional care is not required; after being advised of the right to a full and fair hearing, the Soldier still desires to waive PEB action; and the Soldier has been advised that a PEB evaluation is required for receipt of Army disability benefits, but waiver of the PEB will not prevent applying for Department of Veterans Affairs benefits.
6. Army Regulation 635-200 states that a separation will be described as an entry level separation with service uncharacterized if processing is initiated while a Soldier is in entry level status. Entry level status is defined as the first 180 days of continuous active duty.
7. Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons. The regulation states the reason for discharge based on separation code "KFN" is "Disability, Existed Prior to Service-Medical Board" and the regulatory authority is Army Regulation 635-40, chapter 5.
DISCUSSION AND CONCLUSIONS:
1. The governing regulation states that a separation will be described as an entry level separation with service uncharacterized if processing is initiated while a Soldier is in entry level status. The applicant was in an entry level status when he was released from active duty in 2001.
2. In the absence of evidence to the contrary, it must be presumed the applicants narrative reason for separation was administratively correct and in conformance with applicable regulations.
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) AR20100011027
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ABCMR Record of Proceedings (cont) AR20100011027
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