IN THE CASE OF:	  

		BOARD DATE:	  6 September 2011

		DOCKET NUMBER:  AR20110004547 


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 general discharge to an honorable discharge.  (The applicant did not receive a general discharge; he was separated for failure to meet procurement medical fitness standards and his service was uncharacterized.)

2.  He states, in effect, he incurred a knee injury during basic training (BT) that limited the type of duties he could engage in.   

3.  He provides a self-authored statement and a letter of support.

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 U.S. Army Reserve (USAR) on 21 December 1993.  On 26 October 1994, he was ordered to initial active duty for training (IADT) for 17 weeks to complete BT and military occupational specialty training and was assigned to Fort Knox, KY for BT.  

3.  On 18 November 1994, a "Medical 200 Board" recommended he receive a medical discharge in accordance with Army Regulation 40-501, chapter 2-11b.  The board diagnosed him with left patellofemoral syndrome, secondary to probable patellar chondromalacia, which existed prior to service. 

4.  On 21 November 1994, he acknowledged a medical examination had revealed a medical condition that disqualified him for entry into the military service.  He acknowledged he had been informed that when his medical board was completed his commander would counsel him regarding his options.  He further acknowledged he understood that if he requested a discharge, he would receive an entry-level discharge with no benefits from the Army. 

5.  A DA Form 4707 (Personnel Physical Standards Board (EPSB) Proceedings) completed at Fort Knox, KY, dated 21 November 1994, shows an EPSB found the applicant unfit for enlistment in accordance with current medical fitness standards and in the opinion of the evaluating physicians the condition existed prior to service.  The EPSB did not recommend a waiver.  On 28 November 1994, the findings were approved. 

6.  On 30 November 1994, he indicated he concurred with the EPSB proceedings and requested to be discharged without delay.  The record shows he was not separated at that time.  

7.  His DA Form 2-1 (Personnel Qualification Record) shows he was assigned to Fort Leonard Wood, MO, for advanced individual training (AIT) on 13 January 1995.

8.  A second DA Form 4707, completed at Fort Leonard Wood, MO, dated 3 February 1995, references the DA Form 4707 completed in November 1994 at Fort Knox, KY, as a supporting document.  He again concurred with the proceedings and requested to be discharged without delay.  On 15 February 1995, the separation authority directed his discharge.  

9.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 21 February 1995 under the provisions of Army Regulation 635-200, paragraph 5-11 for failure to meet procurement medical fitness standards.  Item 24 (Character of Service) shows his service was uncharacterized.  He completed 3 months and 27 days of active service.
10.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 5 describes the conditions under which a Solder may be separated for the convenience of the Government.

	a.  Paragraph 5-11 of the version in effect at the time stated 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 entry on active duty (AD) or active duty training (ADT) for initial entry training would be separated.  Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by appropriate military medical authority within 6 months of the Soldier's initial entrance on AD for Regular Army, or during ADT for initial entry training for the Army National Guard of the United States and USAR, which:

		(1)  Would have permanently or temporarily disqualified him or her for entry into the military service or entry on AD or ADT for initial entry training had it been detected at that time.

		(2)  Does not disqualify him or her for retention in the military service under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

	b.  Paragraph 5-1 of the version in effect at the time stated unless the reason for separation required a specific characterization, a Soldier being separated for the convenience of the Government will be awarded a character of service of honorable, under honorable conditions, or an uncharacterized description of service if in entry level status.

	c.  For USAR Soldiers, entry level status begins upon enlistment in the USAR and, for Soldiers ordered to IADT for one continuous period, terminates 180 days after beginning training.

11.  Army Regulation 40-501 states chondromalacia is a cause for rejection for enlistment.  Severe cases may render a Soldier unfit for retention.  

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request to change his discharge to an honorable discharge.

2.  The record shows he was properly discharged while he was in an entry-level status for a medical condition that existed prior to service.  On two separate 
occasions he concurred with the findings of an EPSB and requested immediate discharge.  The record shows he was fully aware of the implications of this type of discharge and of the fact that he could receive an entry-level (uncharacterized) discharge.  

3.  During the first 180 days of continuous active military service, a member's service is under review.  When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant an other than honorable conditions discharge.  An honorable characterization may be given only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and is approved by the Secretary of the Army.  The entry-level separation is given regardless of the reason for separation.  This uncharacterized discharge 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.  In view of the foregoing, there is an insufficient basis for granting the relief he requests.  

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)                                         AR20110004547





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ABCMR Record of Proceedings (cont)                                         AR20110004547



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