BOARD DATE:	  3 April 2012

		DOCKET NUMBER:  AR20110019755 


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 his uncharacterized discharge be upgraded to an honorable or general discharge.

2.  The applicant states that he had an injury to his left knee prior to his  enlistment but it was resolved and he was found qualified for duty at the time of his enlistment physical.  He goes on to state that he had no problems initially with the knee until an accident occurred during a training exercise which caused a new injury to his left knee.  He also states that he was informed that after 1 year his discharge would be upgraded to an honorable discharge but it never occurred. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 Tennessee Army National Guard (TNARNG) on 29 November 1995 for a period of 8 years.  He was ordered to initial active duty training on 26 February 1996 at Fort Jackson, South Carolina.

3.  On 15 March 1996 a Medical Evaluation Board (MEB) determined that the applicant suffered from chronic knee pain/instability that existed prior to service (EPTS).  The MEB recommended that he be separated from the service under the provisions of Army Regulation 635-40, Chapter 5, due to disability – EPTS.

4.  The applicant concurred with the findings and recommendation of the MEB and on 18 March 1996 he requested that he be discharged based on the findings and recommendations of the MEB.  He also waived his right to consideration by a Physical Evaluation Board (PEB) and indicated that he understood that his character of service would be determined by the officer designated to effect separation.

5.  The appropriate authority approved the recommendation for discharge and directed that his service be uncharacterized.

6.  Accordingly, he was discharged on 1 April 1996 under the provisions of Army Regulation 635-40, chapter 5, due to disability, EPTS – Medical Board.  He had served 1 month and 6 days of active service and his service was uncharacterized.

7.  On 7 October 2002 he applied to the Army Discharge Review Board (ADRB) for a re-characterization of his discharge.  On 12 February 2003, after considering all of the available evidence in his case , the ADRB determined that his discharge was both proper and equitable under the circumstances and voted unanimously to deny his request.

8.  Army Regulation 635-200 sets forth the policy for the separation of enlisted personnel.  Paragraph 5-11 provides the criteria for the separation of personnel who did not meet procurement medical fitness standards when accepted for enlistment.  It states that medical proceedings must establish that a medical condition was identified by appropriate military medical authorities within 
6 months of initial active duty training which would have temporarily or permanent disqualified the member for entry into military service had it been detected at the time of enlistment.  While an honorable or general discharge may be issued when clearly warranted by unusual circumstances involving personal conduct and performance of duty, personnel who are in an entry level status (ELS) will receive “Uncharacterized” service.  An honorable discharge is rarely ever granted during the ELS period, which comprises the first 180 days of continuous active service or the first 180 days of continuous active service after a break in service of more than 92 days.  

9.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his condition was caused by military service, and that he should have been medically discharged with an honorable or general discharge has been noted and appears to lack merit.

2.  The applicant’s administrative discharge was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant’s rights.

3.  It is also reasonable to presume that given the time between when the applicant enlisted and the time his condition was discovered, that the applicant provided most of the information pertaining to his history.

4.  In any event, the applicant’s condition existed prior to his service and was an unqualifying condition.  Accordingly, he was properly discharged after undergoing the required medical examinations and there is no basis to grant him a medical discharge for a condition he had when he enlisted. 

5.  Therefore, in the absence of evidence to show that an error or injustice existed in his case, there appears to be no basis to grant 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)                                         AR20110019755





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ABCMR Record of Proceedings (cont)                                         AR20110019755



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