IN THE CASE OF:	  

		BOARD DATE:	  20 October 2010

		DOCKET NUMBER:  AR20100012131 


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 upgrade of his uncharacterized discharge to an honorable discharge.

2.  The applicant states he enlisted in good faith that his country would take care of him.  He was injured but was able to enlist and perform the duties of the sworn contract.  Further, he was told information that provoked him into signing his release [discharge].  He has been refused medical and veteran benefits due to the characterization of his discharge.

3.  The applicant provides the following in support of his application:

* DD Form 4/1 (Enlistment/Reenlistment Document), dated 26 August 1985
* DA Form 2-1 (Personnel Qualification Record), dated 30 October 1985
* DD Form 2246 (Applicant Medical Prescreening Form), dated 25 June 1985
* SF 93 (Report of Medical History), dated 26 June 1985
* SF 88 (Report of Medical Examination), dated 26 June 1985
* SF 600 (Chronological Record of Medical Care), dated 31 October 1985
* SF 513 (Consultation Sheet), dated 1 November 1985
* DA Form 3349 (Physical Profile Board Proceedings), undated
* DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings, dated 7 November 1985
* Eyewear prescription dated 30 October 1985
* Eye test, dated 1 November 1985

* NGB Form 22 (Report of Separation and Record of Service) and honorable discharge certificate, effective 1 October 1983
* DD Form 214 (Certificate of Release or Discharge from Active Duty), effective 15 November 1985

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 enlisted in the New York Army National Guard on 25 May 1983 and was honorably discharged on 1 October 1983 after completing basic combat training.

3.  On 26 June 1985, during his medical prescreening examination, he indicated he had or has eye trouble and a heart murmur.  These items were marked "NO" and then corrected to show "YES."  His initials are shown next to each corrected entry on his SF 93, item 11.

4.  On 26 August 1985, he enlisted in the United States Army Reserve and was ordered to Initial Active Duty for Training (IADT) on 28 October 1985.

5.  On 31 October 1985, he was referred to Ophthalmology for a full eye evaluation to determine medical fitness for military service.

6.  He was subsequently given a temporary profile for optic atrophy to the right eye, superior field defect, and early lens changes.

7.  On 7 November 1985, he appeared before an Entrance Physical Standards Board (EPSBD).  The board determined the applicant sustained an electrical shock on 4 July 1983 which caused him to be in a coma for 23 days.  He has diminished vision in the right eye since the injury occurred.  He was found medically unfit for appointment or enlistment under existing medical fitness standards.  The opinion of the evaluating physician was the condition existed prior to service.  The EPSBD recommended he be separated from the military.

8.  On 12 November 1985, he concurred with the EPSBD proceedings but requested to be retained on active duty.  On 12 November 1985, his company unit commander recommended he be discharged/separated.

9.  On 13 November, the separation authority directed he be discharged from the Army.  He was discharged on 15 November 1985.

10.  The DD Form 214 issued upon his discharge shows he was discharged under the provisions Army Regulation 635-200 (Personnel Separations - Enlisted Separations), paragraph 5-11, by reason of failure to meet procurement medical fitness standards, and he received an "Uncharacterized" description of service.  This document also confirms that as of the date of his separation he had completed 18 days of active military service.

11.  There is no indication the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of or change of reason for his discharge within that board's 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-11 provides that 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 entrance on active duty or active duty training or initial entry training will be separated.  A medical proceeding, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within six 
months of the Soldier’s initial entrance on active duty, that the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at that time, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation
40-501 (Standards of Medical Fitness), chapter 3.  The characterization of service for Soldiers separated under this provision of regulation will normally be honorable, but will be uncharacterized if the Soldier is in an entry level status.

13.  Entry level status is defined as the first 180 days of continuous active duty or the first 180 days of continuous active service after a service break of more than 92 days of active service.  It further states that the character of service for members separated under the provisions of chapter 11 will be uncharacterized.  For the purposes of characterization of service, the Soldier's status is determined by the date of notification as to the initiation of separation proceedings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests to have his discharged upgraded to honorable.

2.  He contends he was provoked into signing a release.  The records clearly show he concurred with the EPSBD proceedings but requested to be retained on active duty.  There is insufficient evidence to support his contention.

3.  The evidence of record confirms the separation action was initiated while he was in entry level status, prior to his completing 180 days of continuous active military service.  As a result, his service was appropriately described as "uncharacterized."  An honorable discharge may be granted only in cases that are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.  There are no such circumstances present in his record.  As a result, a change to the characterization of his service to honorable is not warranted.

4.  The record shows his separation processing was accomplished in accordance with the applicable regulations.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  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.

6.  In view of the foregoing, his request should be denied.

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)                                         AR20100012131





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ABCMR Record of Proceedings (cont)                                         AR20100012131



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