IN THE CASE OF:	  

		BOARD DATE:	  15 February 2011

		DOCKET NUMBER:  AR20100018606 


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 item 24 (Character of Service) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show an honorable characterization.

2.  The applicant states he was discharged from the service due to a service-connected disability and he received severance pay.  He states he received no negative conduct reports or court-martial actions during his period of service; therefore, he believes a clerical error was made when his DD Form 214 was prepared.  He states his copy of his DD Form 214 shows contains a hand written “H” in item 24.  He states this clerical error is preventing him from receiving a Veteran’s discount for tuition at a private college. 

3.  The applicant provides a copy of his DD Form 214 for the period ending on 31 March 1993 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 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.  After a period in the Delayed Entry Program of the U.S. Army Reserve (USAR), the applicant enlisted in the Regular Army on 21 July 1992 for a period of 4 years and 17 weeks.  He enlisted for Career Management Field 11 (Infantry) and received two enlistment options for airborne school and the enlisted College Fund.

3.  On 27 July 1992, the applicant was assigned to Company C, 3rd Battalion, 32nd Infantry Brigade (Training) for his initial basic training.  

4.  While in an entry level training status, he sought medical attention for pain in his leg.  A radiographic report prepared on 4 December 1992 states his proximal right tibia had a stress fracture.  In addition, this report found the proximal left tibia also had an increased radionuclide uptake representing older stress lesions or other trauma or degenerative disease. 

5.  A medical board narrative summary, dated 21 January 1993, shows the applicant started experiencing pain down his right leg during his advanced individual training.  He received medical treatment and a bone scan that revealed a sclerotic line across the diaphyseal region of the proximal third of his tibia with callus on the posteromedial aspect of the shaft.  He was diagnosed with a right tibial stress fracture.  The summary concluded by stating the applicant did not meet the medical standards for retention under the provisions of Army Regulation 40-501.  The medical evaluation board (MEB) referred the applicant to a physical evaluation board (PEB) for disposition.

6.  The available military medical records do not include his MEB and PEB for review.

7.  By electronic message, from the Commander of the U.S. Army Personnel Command (ARPERSCOM), the applicant’s unit commander was notified on 24 March 1993 that the applicant was to be discharged immediately under the provisions of Army Regulation 635-40, paragraph 4-24b(3).  His authorized separation grade was private first class and his disability rating was 10 percent.  Discharge was to be effective no later than 5 April 1993.





8.  On 31 March 1993, the applicant was discharged and issued a DD Form 214 that contains the following entries:

* Item 11 (Primary Specialty) “NA” (not applicable)
* Item 12a (Date Entered Active Duty this Period)  “1992 07 21”
* Item 12b (Separation Date this Period)  “1993 03 31”
* Item 12c (Net Active Service this Period)  8 MONTHS and 10 DAYS
* Item 14 (Military Education) “NONE”
* Item 23 (Type of Separation) “DISCHARGE”
* Item 24 (Character of Service)  “UNCHARACTERIZED” 
* Item 25 (Separation Authority) “AR 630-40, PARA 4-24B(3)”
* Item 28 (Narrative Reason for Separation)  “PHYSICAL DISABILITY WITH SEVERANCE PAY”

9.  References:

	a.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides for the medical treatment facility commander with the primary care responsibility to evaluate those referred to him and will, if it appears as though the Soldier is not medically qualified to perform duty or fails to meet retention criteria, refer the Soldier to a MEB.  Those Soldiers who do not meet medical retention standards based on the criteria in Army Regulation 40-501 will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  Upon determination that a Soldier is not fit for duty while in an entry-level status, his service will be described as uncharacterized. 

	b.  Army Regulation 635-200, Chapter 3, paragraph 3-9, specifies that a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in entry-level status.  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 of more than 92 days of active military service.

	c.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 should show an honorable characterization of service because he was medically separated and received severance pay.

2.  Prior to the applicant completing his initial entry training, appropriate medical personnel diagnosed him with a right tibial stress fracture and found him unfit for retention.  The separation initiation process (MEB) began on 21 January 1993, which is a duration of 5 months and 26 days from his initial entry date of 27 July 1992.  While his MEB and PEB records were not available for review, an electronic message from ARPERSCOM directed the applicant’s unit commander to discharge him immediately under the provisions of Army Regulation 635-40.  As the MEB was initiated within the applicant's first 180 days of active federal service, by definition he was in an entry-level training status.  Therefore, his discharge was properly described as uncharacterized on his DD Form 214. 

3.  In view of the foregoing, there is insufficient basis to change the applicant's discharge from uncharacterized to honorable.

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)                                         AR20100018606



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100018606



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1