IN THE CASE OF:	  

		BOARD DATE:	  4 October 2011

		DOCKET NUMBER:  AR20110005243 


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, that her uncharacterized discharge be upgraded to an honorable or a medical discharge.

2.  The applicant states she was told, in effect:

* her service would be changed from uncharacterized to honorable/medical after 6 months
* she could not be issued a medical discharge because she had not served 180 days
* if she tried to fight the discharge she would go to jail 

3.  The applicant states she was age 18 when she enlisted.  On 27 September 1982, she went to sick call for a sinus infection.  The following day she passed out while standing in formation after taking the antibiotic and completing a physical training test.  She fell on the pavement, cut her chin, broke her jaw, and all of her back teeth.  She also experienced nerve damage to her cheek area.  She had surgery on her jaw and was hospitalized 2 months.  While in the hospital she was molested by two student doctors on three occasions.  She could not talk because her jaws were wired shut.  When she made a written statement concerning the incident no one believed her except the Chaplain.  When she was released from the hospital she was weak, thin, and in pain.  She was not healthy enough to handle the demands of basic training.  When she was discharged, she still had broken teeth, headaches, nerve damage, and limited opening of her jaws.  She also suffers from emotional pain due to both the accident and the molestation.  She should have been discharged for medical reasons instead she was threatened.  She intended to make the military a career. 

4.  She also states the Office of Personnel Management told her she was not entitled to veteran's preference points because she had an uncharacterized discharge.  She has a service connected disability rating of 80% from the Department of Veterans Affairs (DVA). 

5.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Service medical records
* Service personnel records
* DVA medical records

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 15 September 1982 for a period of 3 years.

3.  DA Forms 4856 (General Counseling Form), dated 10 and 11 December 1982, state:

	a.  on 28 September 1982, while standing in formation, the applicant passed out and sustained injuries to her face and mouth which placed her in the hospital.  The bizarre incident left her without self confidence in her ability, this coupled with the fact that she was in the hospital more than 30 days and lost 15 pounds made her believe she was too weak to continue training.  She believed that she needed time to regain her self confidence and motivation.  It was recommended that she be discharged under the provisions of Army Regulation 635-200, chapter 11.    
	b.  she was admitted to the hospital on 28 September 1982 and released on 
5 December 1982 for injuries sustained when she fell on her face.  She had multiple fractures to her jaw and a couple of broken teeth.  When she was counseled on 7 December 1982 she requested a discharge because she felt she could not meet the physical demands of basic training even though she was cleared for training.  In addition, she lacked the motivation and the desire to Soldier.  It was recommended that she be discharged under the provisions of the Trainee Discharge Program. 

	c.  after counseling the applicant on 11 December 1982, the counselor was convinced it would be necessary to discharge her.  She had been in the hospital since 28 September 1982 and she was physically and mentally unprepared to start training.  She also lacked the motivation and in his opinion she would not become a productive Soldier.  It was recommended that she be discharged under the provisions of the Trainee Discharge Program. 

4.  On 11 December 1982, the applicant’s unit commander initiated action to separate her under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, Trainee Discharge Program.  The commander cited her:

* inability to meet physical requirements
* lack of motivation to continue training

5.  On 11 December 1982, 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 requested a separation physical.

6.  On 13 December 1982, she underwent a separation physical examination and was found to be qualified for separation with a physical profile of 111111.

7.  On 23 December 1982, the separation authority approved the recommendation for discharge with uncharacterized service.

8.  On 23 December 1982, 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 9 days of creditable active service.  Item 24 (Character of Service) of her DD Form 214 shows the entry "UNCHARACTERIZED."


9.  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.

10.  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.

11.  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.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

13.  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.

14.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): 
P-physical capacity or stamina, U-upper extremities, L-lower extremities, 
H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  

15.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

16.  Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she was told her service would be changed from uncharacterized to honorable/medical after 6 months.  However, a discharge upgrade is not automatic.

2.  The available evidence shows the applicant enlisted in the Regular Army on 
15 September 1982 for a period of 3 years.  She was in an entry level status when she was discharged on 23 December 1982; therefore, her character of service is properly reflected in item 24 of her DD Form 214.

3.  The governing regulation states that a separation will be described as an entry level separation with uncharacterized service if processing is initiated while a Soldier is an entry level status.  An uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service.  It merely means the Soldier has not been in the Army long enough for the Soldiers 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.




4.  It is noted that during basic training, on 28 September 1982, the applicant sustained injuries when she passed out, fell, and broke her jaw and some teeth.  However, medical evidence shows she was found to be physically qualified for separation on 13 December 1982 with a physical profile of 111111.  As such, there is no basis for granting the applicant's request for a medical discharge.

5.  The rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  The VA operates under its own policies and regulations and assigns disability ratings as it sees fit.  

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)                                         AR20110005243



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ABCMR Record of Proceedings (cont)                                         AR20110005243



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