IN THE CASE OF:	  

		BOARD DATE:	  21 April 2011

		DOCKET NUMBER:  AR20100025501 


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, in effect, change of her entry level status discharge to an honorable or a medical discharge.

2.  The applicant states:

* she sustained a broken foot/leg fracture in basic training
* she received hospital care while in training
* her DD Form 214 (Certificate of Release or Discharge from Active Duty) does not mention honorable or medical problems

3.  The applicant provides:

* a Physician Statement
* her DD Form 214

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 Regular Army on 7 February 1983 for a period of 4 years.

3.  DA Forms 4856 (General Counseling Form), dated 18 and 22 April 1983, states:

* she lacks the motivation, determination, and self discipline to finish basic training
* she has been on profile for 4 weeks and she has been unable to train
* her attitude toward the Army has been very degrading
* she has expressed a desire to be released from the Army
* due to her attitude towards the Army, lack of motivation and discipline, and physical condition, she will be recommended for the Trainee Discharge Program

4.  On 25 April 1983, the applicant’s unit commander initiated action to separate her under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, for entry level status performance and conduct.  The commander cited:

* her inability to meet the standards of military training
* poor duty performance and attitude toward military service

5.  On 25 April 1983, she acknowledged notification of the proposed separation action under the provisions of the Trainee Discharge Program.  She elected not to consult with consulting counsel, not to make a statement in her own behalf, and not to request a separation physical.

6.  On 28 April 1983, her intermediate commander stated:

* she did not have the physical condition or motivation required to complete basic training
* she has been on profile for 4 weeks with a cast on her foot
* she is very poor at physical training and she has little upper body strength
* she is not willing to make the effort necessary to improve


* she wants to be discharged
* she is not Soldier material

7.  On 3 May 1983, the separation authority approved the recommendation for discharge and directed the applicant's separation with a character of service as uncharacterized.

8.  On 9 May 1983, she was discharged under the provisions of Army Regulation 635-200, paragraph 11-3a, by reason of entry level status performance and conduct.  She completed 3 months and 3 days of creditable active service.

9.  There is no indication in the applicant's service records that she was issued a permanent physical profile that restricted her duties and/or assignments or warranted her referral to the Physical Disability Evaluation System (PDES).  

10.  Item 24 (Character of Service) of her DD Form 214 shows the entry "ENTRY LEVEL STATUS."

11.  She provided a Physician Statement, dated 22 March 2010, which states "The patient is permanently and totally disabled and will never be gainfully employed."

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of this regulation, in effect at the time, provided for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry level status.  This provision of regulation applied to individuals who had demonstrated that they were not qualified for retention because they could not adapt socially or emotionally to military life, or because they lacked the aptitude, ability, motivation, or self discipline for military service, or they had demonstrated characteristics not compatible with satisfactory continued service.  The separation policy applied to Soldiers who could not meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline.  The regulation required an uncharacterized description of service for separation under this chapter.

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.

14.  Army Regulation 635-200, paragraph 3-7a, provides that 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.

15.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his/her office, rank, grade, or rating because of disability incurred while entitled to basic pay.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES 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 or her office, grade, rank, or rating.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant enlisted in the Regular Army on 
7 February 1983 for a period of 4 years.  Since she was in an entry level status when she was discharged on 9 May 1983, her character of service is properly reflected in item 24 on her DD Form 214.

2.  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.  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.  Therefore, there is no basis for granting the applicant's request for an honorable discharge.

3.  It is noted she was on profile and she had a cast on her foot during basic training which probably restricted some training.  However, in the absence of evidence to the contrary, it is presumed she was not asked or expected to do something she could not do.  Evidence shows her commanders cited her inability to meet the standards of military training, her poor duty performance and attitude toward military service, she did not have the physical condition or motivation required to complete basic training, she was not willing to make the effort necessary to improve, she wanted to be discharged, and she was not Soldier material.  In addition, she declined a medical separation examination on 25 April 1983.  As such, there is no basis for granting the applicant's request for a medical discharge.

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)                                         AR20100025501



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ABCMR Record of Proceedings (cont)                                         AR20100025501



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