IN THE CASE OF:	  

		BOARD DATE:	  8 September 2011

		DOCKET NUMBER:  AR20100029895 


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 correction of his discharge to show he received a medical discharge due to physical disability with a general discharge.

2.  He states his medical records verify that he was medically discharged.

3.  He provides the same medical evidence and self-authored statement as provided in his previous case.

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.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Board in Docket AR2003090547, dated 27 January 2004.  In his previous case, he requested that the reason for his discharge be changed to something less derogatory.

3.  The medical evidence provided shows that on 18 March 2002, while undergoing fitness training at Fort Jackson, SC, as part of the Fitness Training Company (FTC), he reported to medical personnel that he felt his knee pop while running.  The medical treatment record indicated the applicant was in his second week of fitness training and that he had failed the Army Physical Fitness Test (APFT).  It also noted that he had no prior history of knee pain or any prior injury to his knee. The physician stated the applicant had some tenderness in his right knee, but he had full range of motion and the knee was stable.  The applicant was referred to physical therapy for right knee pain and issued a temporary 5-day profile.

4.  On 22 March 2002, the applicant reported mild improvement.  His profile was extended “until Monday” at which time he was “cleared for all duty vs. administrative actions.”  The physician noted that the applicant was not a candidate for the Physical Training Rehabilitation Program, a program designed to assist Soldiers injured during initial entry training who still desired to finish their training.

5.  On 25 March 2002, he returned to medical authorities and complained of right knee pain with no new injury.  He was diagnosed with chronic right knee pain and it was recommended that his unit pursue an administrative chapter separation.  In an undated statement, titled “Referral for Command Discussion,” the applicant’s physician recommended a “chapter for time to strengthen knee.”  The statement indicated that the applicant’s physician felt he had entered the Army too soon without sufficient physical training (PT) and believed that “chapter is best option then back in 6 months” when the applicant would have a “stronger chance of passing PT with no further injury.”

6.  On 28 March 2002, he was counseled for separation proceedings under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, due to his injury.  The counselor noted the applicant's physician had recommended his discharge “due to the post sublex and strained mci injury to the right knee."

7.  On 3 April 2002, he was notified that his commander was initiating actions to administratively separate him from active duty for “lack of ability.”  The applicant acknowledged receipt of the proposed separation action and waived his rights, including the right to consult with military or civilian legal counsel.

8.  On 11 April 2002, he was discharged from active duty under the provisions of Army Regulation 635-200, chapter 11, by reason of entry level performance and conduct, with a character of service of uncharacterized.  He completed 1 month and 16 days of creditable active service at the time of discharge.

9.  Army Regulation 635-200, chapter 11, provides for the separation of Soldiers in an entry-level status (ELS) (less than 180 days of creditable active service) who have demonstrated they are not qualified for retention.  Specifically cited as an example which would render an individual not qualified for retention were those Soldiers who “cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline.”  Individuals discharged under the provisions of chapter 11 received an “entry level performance and conduct” statement as the narrative reason for their separation.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  

11.  Army Regulation 635-40 also states the commander will refer a Soldier to the servicing medical treatment facility for medical evaluation when the Soldier is believed to be unable to perform the duties of his or her office, grade, rank, or rating.  The medical treatment facility commander having primary medical care responsibility will conduct an examination of a Soldier referred for evaluation.  The commander will advise the Soldier's commanding officer of the results of the evaluation and the proposed disposition.  If it appears the Soldier is not medically qualified to perform duty, the medical treatment facility commander will refer the Soldier to a medical evaluation board (MEB).

12.  Army Regulation 635-200, paragraph 3-7b, provides that 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.

13.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states that the SPD code JGA is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 11, by reason of entry level performance and conduct.  The SPD/RE Code Cross Reference Table stipulates that an RE-3 code will be assigned to members separated under these provisions with an SPD code of JGA.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's requests to change his discharge to a medical discharge due to physical disability and his characterization of service to general under honorable conditions have been carefully considered; however, there is insufficient evidence to support his request.

2.  The evidence of record confirms his separation action was initiated prior to him completing 180 days of continuous active military service.  Therefore, his service is described as uncharacterized.  The record further shows his separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  A Soldier is in ELS, or probationary period, for the first 180 days of continuous active service.  The issuance of a general discharge to members in ELS is not authorized.  An ELS performance and conduct discharge is given regardless of the reason for separation when a Soldier has completed less than 180 days of active service.  This uncharacterized service 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 available evidence shows the applicant was in the FTC awaiting the opportunity to pass the APFT he previously failed, when the injury to his knee occurred.  The medical evidence further shows he was given a temporary profile and attended physical therapy for his knee injury.  However, the physician felt the applicant had entered the Army without sufficient physical training.  There is no evidence to show the applicant incurred an injury that time would not heal.  Unfortunately, for a Soldier in basic training time is not available.  Therefore, the physician opined that the chapter discharge was the best opportunity to allow him a stronger chance of pass the APFT without further injury, and the applicant was recommended for separation.

5.  No medical evidence has been presented by the applicant to demonstrate an injustice in the medical treatment he received while he was on active duty or any evidence to show he was denied due process.  Consequently, there is no basis for granting his request.

6.  In view of the foregoing, 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)                                         AR20100029895



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ABCMR Record of Proceedings (cont)                                         AR20100029895



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