IN THE CASE OF:	  

		BOARD DATE:	  3 January 2012

		DOCKET NUMBER:  AR20110013528 


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 his uncharacterized discharge be upgraded to a general discharge or a medical discharge.

2.  The applicant states, in effect, he broke/fractured his foot during basic training.  His foot was put in a cast and he could not complete the training.  His foot injury has always given him trouble and he has been in pain.  He contends the 180 day rule should not apply to him because he enlisted in the Army on 
1 September 1982, prior to the changes made on 1 October 1982.  The Army cannot change the terms of his contract after it has been signed.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty); two Standard Forms 519-A (Radiographic Report), dated 6 December 1982, and 7 January 1983; his U.S. Army Reserve (USAR) DD Form 4 (Enlistment Contract) pages 1 through 4, dated 1 September 1982; and his Regular Army (RA) DD Form 4, dated 2 November 1982.

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.  On 2 November 1982, the applicant enlisted in the RA and he was assigned to Fort Jackson, South Carolina for enrollment in the Basic Combat Training Course (BCT).

3.  The applicant was counseled/referred concerning his duty performance on:

   a.  25 November 1982, he was counseled for a poor appearance, lack of motivation, lack of mastery of training skills, and physical fitness.  He could not march.

   b.  1 December 1982, he was referred for additional help, he desired to remain in service, and his performance was rated marginal to satisfactory except for physical training (PT).  He was placed in the remedial PT program.

   c.  3 December 1982, he was counseled for a poor appearance, lack of motivation, marching movements, lack of self-discipline, physical fitness, and overall assessment.

   d.  14 January 1983, he was referred, because he regressed in physical aptitude; he could only do three correct push-ups.  He did not work with the instructor as he was told and he did not do exercises as he was told.

4.  He was also failed the following basic physical fitness tests (BPFT) on:

* 20 January 1983, failed the BPFT with only 6 push-ups
* 26 January 1983, failed the second BPFT with only 14 push-ups
* 8 February 1983, failed the third BPFT with only 15 push-ups 
* 2 March 1983, failed the BPFT with only 21 push-ups and he was informed of the possibility of a new training start date for which he was not eager but was willing

5.  The two Standard Forms 519-A provided by the applicant also indicate he had a stress fracture in his left foot.

6.  On 9 March 1983, the applicant's commander notified the applicant that he was recommending that he be separated from the service under the provisions of chapter 11, Army Regulation 635-200, Trainee Discharge Program (TDP), due to a lack of physical aptitude.
7.  On 9 March 1983, the applicant indicated that he did not desire to consult with counsel, make a statement in his own behalf, or have a separation medical examination.

8.  On 12 March 1983, the appropriate authority approved the recommendation and directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 11, with uncharacterized service.

9.  Accordingly, on 21 March 1983, the applicant was discharged.  The DD Form 214 issued to the applicant shows in:

* item 25 (Separation Authority) the entry "Army Regulation 635-200, chapter 11-3a"
* item 28 (Narrative Reason for Separation) the entry "Entry Level Status Performance and Conduct"

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  This regulation was revised effective 1 October 1982 to delete the expeditious discharge program and provide for an uncharacterized separation for Soldiers separated with 180 days or less of continuous service.  

	a.  Separation actions and proceedings initiated prior to 1 October 1982 will be processed in accordance with the regulation as in effect at the time the action was initiated.

	b.  chapter 11 establishes policy and prescribes procedures for separating members because of unsatisfactory performance or conduct (or both) while in an entry level status.  Separation of a Soldier in entry level status may be warranted on the grounds of unsatisfactory performance and/or unsatisfactory conduct as evidenced by, among other reasons, inability.  This policy applies to Soldiers who, among other reasons, have demonstrated they are not qualified for retention because, among other reasons, they cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline.



	c.  separation under this chapter applies to Soldiers who are in an entry level status and, before the date of the initiation of separation action, have completed no more than 180 days of continuous active duty and have demonstrated that they cannot or will not adapt socially or emotionally to military life.

	d.  entry level status is defined as the first 180 days of continuous active duty.  It further states that the character of service for members separated under the provisions of this chapter will be uncharacterized.

12.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling.  It further provides at section 1201 for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.

13.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, paragraph 3-1, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his uncharacterized discharge should be upgraded to a general discharge or a medical discharge because he broke/fractured his foot during BCT.

2.  The available evidence clearly shows the applicant was afforded many opportunities to pass the required BPFT but he did not do so, resulting in his separation action.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

4.  The applicant's uncharacterized discharge appears to be correct.  Therefore, there is no error or injustice.

5.  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 Soldier's character of service to be rated as honorable or otherwise.
6.  The applicant argues that the 180 day rule should not apply because he enlisted in the Army on 1 September 1982, prior to the changes made on 
1 October 1982.  However, the revised regulation clearly states that separation actions and proceedings will be processed in accordance with the regulation as in effect at the time the action is initiated.  In the applicant's case, his separation was initiated in March 1983, after implementation of an uncharacterized character of service.  Accordingly, his separation was processed appropriately. 

7.  The available evidence clearly shows the applicant fractured his left foot during training; however, it does not show that his medical condition was so severe as to warrant a finding of unfitness resulting in a separation for physical disability.

8.  In view of the foregoing, the applicant's 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 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)                                         AR20110013528



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ABCMR Record of Proceedings (cont)                                         AR20110013528



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