IN THE CASE OF:	  

		BOARD DATE:  19 April 2012

		DOCKET NUMBER:  AR20110018770 


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 that her uncharacterized discharge be upgraded and changed to a medical discharge.

2.  The applicant states she received a service connected stress fracture in her right foot and subsequently suffered from depression and anxiety from the trauma.  She further contends that she did not have an "adjustment disorder."  She did not have problems with training.  The company commander personally told her that she was a good Soldier who had a lot of drive.  She was passing her physical training tests, showing improvement each time.  She did not get into trouble.  She did not agree with the medical care that she received.  She requested her discharge.  It was not suggested by the Army.

3.  The applicant provides copies of 

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 518 (Screening Note of Acute Medical Care) dated on 5, 12, and 25 May 2001
* Physical Training and Rehabilitation Program (PTRP) Appointment slip dated 29 May 2001
* Fort Jackson Sick Slip, dated 11 June 2001
* PTRP Profile dated 24 May and 25 July 2001
* Three Information sheets from the internet pertaining to military justice regarding physical or mental condition and disability, separation codes, and reentry codes

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 4 April 2001, the applicant enlisted in the RA and was assigned to Fort Jackson, South Carolina for enrollment in the Basic Combat Training Course (BCT).

3.  The medical documents provided by the applicant report the following:

	a.  On 4 May 2001, she went to the medical clinic.  Her chief complaint was a cold she had for 3 weeks.  She also complained of foot and ankle pain she suffered for 2 days.  She was diagnosed with numbness in the first digit of both feet.

	b.  On 12 May 2001, she returned to the medical clinic (1st follow-up) with the complaint of pain in both feet.  She was prescribed medication, placed on a profile with a follow-up in 3 to 5 days.

	c.  On 25 May 2011, she returned to the medical clinic (2nd follow-up) with the complaint of pain in both feet for 6 weeks.  Her feet were x-rayed.  She was prescribed medication and crutches.  She was to be seen again on 29 May 2001.

	d.  On 29 May 2001, she was given a temporary physical profile based on a debilitating condition of the 3rd metatarsal in her right foot.  The profile was valid through 8 June 2001.  She was given a follow-up appointment for 7 June 2001.

	e.  On 11 June 2001, she was prescribed medication for a sore throat, ear and eye problems.

	f.  On 25 July 2001, her physical profile was extended until 7 August 2001.  She was permitted to walk without the crutches after completion of her convalescent leave.
4.  On 11 July 2001, the applicant requested a self-referral for a mental health evaluation.  She was given an appointment date of 17 July 2001.  She stated the reason for her request was that since being pulled from basic combat training she had experienced a worsening of her nerves.  She had reached her breaking point and felt she was on the verge of a breakdown.  Parts of her body had been going numb.  She cried a lot and had trouble sleeping, and eating.  She had a lot of nausea and headaches.  While on convalescent leave she had seen a doctor several times for depression and anxiety.  She did not want to end up in a hospital with a nervous breakdown.  She needed to be whole for her 11 year old son.  She stated she had enough and just wanted to be discharged from the military so she could get back her life.  What has happened is out of her control.  She had done everything in her power but it has been too much for her.

5.  On 17 July 2001, at a mental status evaluation, the applicant's behavior was found to be normal.  She was fully alert and oriented but displayed an anxious and depressed mood.  Her thinking was clear, her thought content normal and her memory good.  There was no significant mental illness.  The applicant was mentally responsible.  She was diagnosed with an Axis I, adjustment disorder with mixed anxiety and depressed mood.

6.  On 18 July 2001, the applicant's commander counseled her regarding her performance of duty.  He noted that her level of motivation and duty performance had decreased since her return the previous day from her mental health evaluation.  He informed her of his intention to recommend that she be separated from the U.S. Army.  He cited her diagnosis of adjustment disorder with mixed anxiety and depressed mood.  She was further advised that while in an ELS, her military service could be uncharacterized.  The applicant indicated her agreement with the contents of the counseling and signed and dated the form.

7.  On 24 July 2001, the applicant's commander notified her that he was recommending that she be separated from the service under the provisions of chapter 11, Army Regulation 635-200, ELS due to an adjustment disorder.  The applicant acknowledged on that same day receipt of this recommendation.

8.  24 July 2001, the applicant indicated that she did not desire to consult with counsel, make a statement in her own behalf, or to receive copies of the documents sent to the separation authority.  She further stated her understanding that if the separation authority approved her separation, she would receive an uncharacterized discharge.  She also indicated her understanding that she would not be eligible for reentry into the U.S. Army for a period of 2 years.


9.  On 24 July 2001, the applicant's commander submitted his recommendation for her separation to the battalion commander.  He cited the same authorities and reasons as indicated in his notification to the applicant.

10.  On 26 July 2001, the appropriate authority approved the recommendation and directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 11, in an ELS, due to her performance and conduct, with issuance of an uncharacterized discharge.

11.  Accordingly, on 2 August 2001, 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"
* item 26 (Separation Code) JGA
* item 27 (Reentry Code (RE)) 3
* item 28 (Narrative Reason for Separation) the entry "Entry Level Performance and Conduct"

12.  On 5 June 2002, the Army Discharge Review Board (ADRB) considered her application for upgrade of her discharge.

	a.  The ADRB noted that the applicant had been discharged while in ELS with an uncharacterized service.  It further stated that an honorable discharge may have been granted only in cases which were clearly warranted by unusual circumstances involving outstanding personal conduct and/or duty performance.  No such unusual circumstance was present in the applicant's record.

	b.  The ADRB unanimously voted to deny the applicant an upgrade of her discharge citing that she had been properly and equitably discharged.

	c.  This regulation provides for an uncharacterized separation for Soldiers separated in an entry level status (ELS).  ELS is defined as the first 180 days of continuous active duty.

13.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE Codes including RA RE codes.  RE 3 applies to persons separated from their last period of service with a waivable disqualification.  That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.
14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code of JGA was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of AR 635-200, Chapter 11, due to entry level performance and conduct. Additionally, the SPD/RE Code Cross Reference Table establishes RE Code 3 as the proper RE code to assign to Soldiers for this reason.

15.  Army Regulation 635-200 (Personnel separations) governs the policies and procedures for the separation of enlisted personnel.

	a.  This regulation provides for an uncharacterized separation for Soldiers separated in an entry level status (ELS).  ELS is defined as the first 180 days of continuous active duty.

	b.  Chapter 11 of this regulation 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.

16.  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.

17.  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 her uncharacterized discharge should be upgraded and changed to a medical discharge.

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

3.  The applicant's uncharacterized discharge appears to be correct.  Therefore, there is no error or injustice.  The SPD code and RE code as shown on her DD Form 214 are in agreement with the governing regulations.

4.  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.

5.  The available evidence clearly shows the applicant suffered from medical conditions that resulted in her removal from training.  However, it does not show that her medical condition was so severe as to warrant a finding of unfitness resulting in a separation for physical disability.

6.  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)                                         AR20110018770





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ABCMR Record of Proceedings (cont)                                         AR20110018770



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