IN THE CASE OF:	  

		BOARD DATE:	  20 October 2010

		DOCKET NUMBER:  AR20100011816 


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 a change in his characterization of service on his
DD Form 214 (Certificate of Release or Discharge from Active Duty) from "Uncharacterized" to "Honorable."

2.  The applicant states he was going to be a good Soldier and he was doing fine until he went to jump school and injured his lower back and hip.  He was
18 years old at the time and he was very disappointed with himself and the Army. He felt the Army was trying to get rid of him.  He is now older and has a lovely wife and two beautiful children.  His discharge is a sour subject because he knows he should have fought to stay in the Army.  He also was a football star in school and thought he had a great military career ahead of him.  He loves his country and would gladly pick up a weapon and fight for his country until his death.  The discharge is hanging over his head.  He would like it changed.

3.  The applicant provides the following documents:

* DD Form 214
* DA Form 2-1 (Personnel Qualification Record)
* Complete separation packet

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 records show he enlisted in the Regular Army for a period of 3 years on 26 August 1992.  He completed basic combat training at Fort Jackson, SC and proceeded to Fort Benning, GA for completion of the Basic Airborne Course.

3.  His narrative summary (NARSUM) shows he was a football player in high school and he had been previously injured in one of the last games of the season.  The NARSUM also noted he previously had to chop a lot of wood for a home furnace, which aggravated his back.  During jump school, he had a PLF (Parachute Landing Fall) which was relatively hard and led to his back pain. He went on sick call and he was treated conservatively.  It was felt he should not train in military occupational specialty (MOS) 43E (Parachute Rigger) and he was reassigned to Fort Lee, VA, to complete training in MOS 94B (Cook).

4.  Upon arrival at Fort Lee, he found it difficult to participate in training that included walking long distances, road marching, running, and participating in physical training activities.  He subsequently underwent a physical evaluation which ultimately led to a diagnosis of mechanical low back pain, EPTS (Existed Prior to Service).

5.  On 16 February 1993, a medical evaluation board (MEB) convened at Kenner Army Community Hospital, Fort Lee, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant had the EPTS condition of mechanical low back pain.  The MEB recommended his discharge under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 5.  He agreed with the MEB's findings and recommendation.

6.  Subsequent to this MEB, by memorandum, he requested a discharge from the Army by reason of physical disability that existed prior to his service as determined by the MEB which considered him unqualified for service and was neither incident to nor aggravated by service.  He acknowledged he was fully informed and understood his rights and that if his request was approved he would be separated by reason of EPTS physical disability and he would receive the appropriate character of service.

7.  On 19 February 1993, the separation authority approved the applicant's discharge from the Army and directed he receive an uncharacterized character of service.  Accordingly, the applicant was discharged on 25 February 1993.  The DD Form 214 he was issued confirms he was discharged from active duty for a physical disability that existed prior to his entry on active duty in accordance with Army Regulation 635-40, chapter 5, with an uncharacterized character of service. This form also shows that he completed 6 months of creditable active military service.

8.  Army Regulation 635-40 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 office, grade, rank, or rating.   Chapter 5 of the regulation in effect at that time pertained to expeditious discharge for disabilities, EPTS.  It stated Soldiers who were unfit for retention on active duty by reason of physical disability which was neither incurred nor aggravated during the period in which the Soldier was entitled to basic pay would be expeditiously discharged.

9.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) provides for the separation of enlisted personnel.  It states in: 

	a.  paragraph 3-7a, an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  paragraph 3-7b, a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

	c.  paragraph 3-9, an uncharacterized separation is an entry-level separation. A separation will be described as an entry-level separation if processing is initiated while a member is in entry-level status, except when characterization under other than honorable condition is authorized under the reason for separation and is warranted by the circumstances of the case or when 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.  For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break in service of more than 92 days of active military service.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was determined to have an EPTS condition that warranted his discharge from the Army.  He was appropriately counseled and consented to this discharge and he was ultimately discharged accordingly with an uncharacterized characterization of service.   

2.  During the first 180 days of continuous active military service, a member's service is under review.  When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant an under other than honorable conditions discharge.  An honorable characterization may be given only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and is approved by the Secretary of the Army.

3.  The entry-level separation is given regardless of the reason for separation. This uncharacterized discharge is neither positive nor negative; it is not "derogatory."  It simply means the Soldier did not serve long enough to qualify for a specified characterization of service.

4.  The applicant received the appropriate character of service and he has provided no evidence to show it is in error or unjust.  Therefore, there is no basis for granting his 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)                                         AR20100011816



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ABCMR Record of Proceedings (cont)                                         AR20100011816



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