IN THE CASE OF:	  

		BOARD DATE:	  1 February 2011

		DOCKET NUMBER:  AR20100020036 


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 at the time of his discharge he was diagnosed with positive Lachman's in his right knee, which prevented him from placing heavy strain on the knee without collapsing.  This injury occurred prior to service and was fully documented by medical personnel at the Military Personnel Entrance Processing Station in Dallas, TX.  He was given the option to remain in medical holdover, have surgery and repeat basic training (although he was already in advanced individual training), or be discharged.  The medical personnel responsible for his care told him he would receive an uncharacterized discharge, but that it could be modified after 6 months to an honorable discharge.  His understanding was that the process was automatic but now he realizes that was incorrect.

3.  He states that since his separation he attended the police academy and has worked in law enforcement for nearly 20 years, earning the rank of captain.  He is the first and only recipient of the Distinguished Service Medal with the Haltom City Police Department.  He will attend the Federal Bureau of Investigation National Academy in Quantico, VA, from July through September 2010, which will move him one step closer to fulfilling his aspirations of becoming a chief of police.

4.  Lastly, he states that although not in the armed services, he has remained in the service of his local, State, and Federal government and he has dedicated his adult life to safeguard and protect the citizens of our great country from those who wish to create harm and other ill-intentions for our citizenry.

5.  The applicant provides his service record from the Texas Commission on Law Enforcement Officer Standards and Education; page 3 of his DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings, dated 19 July 1988; a Standard Form 600, dated 26 April 1988; a Standard Form 513 (Consultation Sheet), dated 28 June 1988; and a DA Form 5181-R (Screening Note of Acute Medical Care), dated 20 June 1988.

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.  His Standard Form 88 (Report of Medical Examination), dated 29 October 1987, found him acceptable for entrance in the Army and did not show the applicant had any medical condition associated with his right knee.

3.  The applicant enlisted in the Regular Army on 26 April 1988.

4.  On 26 April 1988, his Standard Form 600 states he suffered a right knee injury 2 weeks prior to entrance in the Army.  At that time it was felt to be bruised; however, now he suffered intermittent locking and decreased weight bearing ability.  Additionally, his right knee would swell if pushed or put under strenuous activity.

5.  On 20, 24, and 28 June 1988, he was seen in the Troop Medical Clinic, Fort Benning, GA, for knee pain.  The screening notes from his second visit state that 2 weeks prior to entering the service a bull stepped on his right knee at a rodeo.  He was referred to the Orthopedic Clinic for evaluation.

6.  On 28 June 1988, the physician assistant in the Orthopedic Clinic referred him to an EPSBD.

7.  On 12 July 1988, he appeared before an EPSBD.  The board found the applicant suffered from positive Lachman's of the right knee.  The opinion of the evaluating physician was the condition existed prior to service.  The EPSBD recommended that he be separated from the military.

8.  On 19 July 1988, he concurred with the EPSBD proceedings and requested to be discharged without delay.  On 22 July 1988, his unit commander recommended that he be discharged/separated.

9.  On 28 July 1988, the separation authority directed that he be discharged from the Army.  He was discharged on 5 August 1988.

10.  The DD Form 214 issued upon his discharge shows he was separated 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 completed 3 months and 10 days of active military service.

11.  There is no indication the applicant petitioned the Army Discharge Review Board 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 6 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 discharge upgraded to honorable.  He contends he believed his discharge would be automatically upgraded to honorable after 6 months and feels his post-service accomplishments warrant an upgrade of his discharge to honorable.

2.  The evidence of record confirms he concurred with the EPSBD proceedings and requested to be discharged without delay.  The separation action was initiated while he was in an 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.

3.  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.

4.  His post-service accomplishments are noteworthy; however, an uncharacterized discharge is not meant to be a negative reflection of a Soldier's military service.  It merely means the Soldier was not in the Army long enough for his or her character of service to be rated as honorable or otherwise.

5.  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 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)                                         AR20100020036



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ABCMR Record of Proceedings (cont)                                         AR20100020036



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