IN THE CASE OF:	  

		BOARD DATE:	  10 April 2012

		DOCKET NUMBER:  AR20110016457 


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 change of his uncharacterized entry level status separation to show that he was honorably discharged by reason of physical disability.  He also requests issuance of a DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states he served for almost 3 years and he had active duty orders to return to Fort Benning, GA.  On his way to the airport dressed in his Class A uniform he was severely disabled in a motor vehicle accident and hospitalized.  He further states he met all of the criteria for an honorable discharge for medical reasons; however, he received an uncharacterized separation.  He continues by stating that he was an exemplary Soldier and after his accident he moved away and it took some time for his discharge to go through and he did not understand the process.  He also states he recently obtained documents that he had not received previously that shows he should have been medically discharged.

3.  The applicant provides a copy of:

* his discharge orders
* his initial active duty for training orders
* his admission to the hospital on 15 June 1992
* an Individual Sick Slip
* memoranda from his unit
* a DA Form 2173 (Statement of Medical Examination and Duty Status)


* his Leave and Earnings Statement (LES) for the period 1-30 June 1992
* a medical officer’s comments on an unidentified form, dated 30 June 1993

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 13 May 1991 for a period of 6 years, training as an infantryman under the split-training enlistment option, and a cash enlistment bonus. 

3.  He was ordered to initial active duty for training (IADT) on 14 June 1991 at Fort Benning to undergo his basic training.  He completed his basic training on
9 August 1991 and he was returned to his USAR unit in Oklahoma.  A memorandum was issued by the Trainee Records Branch in lieu of a
DD Form 220 (Active Duty Report) indicating the applicant had completed his basic training.

4.  He was again ordered to ADT on 16 June 1992 to undergo his advanced individual training (AIT) as an infantryman at Fort Benning.

5.  However, at 1048 hours on 15 June 1992, while en route to the airport, he was involved in a motor vehicle accident and he was hospitalized.

6.  On 22 June 1992 a memorandum was dispatched to the applicant from his USAR unit advising him that he would be placed on Standby Reserve status.  He was also advised he would be examined within 1 year from the date of his transfer and if qualified, he would be transferred back to his previous USAR status.

7.  The medical officer’s comments provided by the applicant is a poor copy of an unknown document, dated 30 June 1993, that does not contain the applicant’s name.  It indicates the handwritten entry “Legs are weak and can’t do much – Recommend Medical Discharge.”

8.  There is no evidence in the available records that show the applicant was ever officially determined to be unfit for duty.

9.  The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records.  His record shows no evidence of him ever completing his AIT; however, they contain a copy of orders showing he was discharged from the USAR on 11 May 1994 under the provisions of Army Regulation 135-178 (Enlisted Administrative Separations) under entry level status with service uncharacterized.

10.  Army Regulation 635-5 (Separation Documents) serves as the authority for the preparation and issuance of the DD Form 214.  It provides, in pertinent part, that the DD Form 214 will be issued to Reserve Component Soldiers completing IADT that results in the award of a military occupational specialty (MOS), even when the active duty period was less than 90 days.  This includes completion of AIT under the USAR split-training program.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the mere presence of 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 may reasonably be expected to perform because of his or her office, rank, grade or rating.

12.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provides the policies and procedures for the separation of enlisted personnel.  It provides, in pertinent part, that Soldiers who have not completed or cannot complete IADT will be separated under entry level status.  Entry level status is defined as less than 180 days of creditable continuous active duty prior to the initiation of separation action or failure to complete active duty for training that leads to award of a military occupational specialty.  Separation under entry level status will be uncharacterized.
 
DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant was properly discharged in accordance with applicable regulations, with no indication of any violation of the applicant’s rights.

2.  The applicant has not provided and the evidence of record does not contain sufficient evidence to show he was deemed unfit for further service or that he was unable to complete his training.  Therefore, it must be presumed that the applicant’s discharge was in accordance with the applicable regulations with no violations of the applicant’s rights.

3.  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.  As a result, there is no basis for granting the applicant's request to change his uncharacterized character of service.

4.  The applicant did not serve on active duty long enough to be issued a
DD Form 214 and he did not complete his AIT.  Accordingly, there is also no basis to grant this portion of his request.

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)                                         AR20110016457



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ABCMR Record of Proceedings (cont)                                         AR20110016457



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