BOARD DATE:	  5 June 2012

		DOCKET NUMBER:  AR20110023159 


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 an upgrade of his uncharacterized discharge to an honorable discharge.

2.  The applicant states he was discharged for medical reasons.  Nothing he did during his military service was dishonorable.  He was told by his chain of command he would receive an honorable discharge. 

3.  The applicant provides a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service). 

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’s records show he enlisted in the Texas Army National Guard on 26 August 1994.  He entered active duty for training (ADT) on 24 October 1994 and he was assigned to the 95th Adjutant General Battalion, Fort Sill, OK, for completion of training.

3.  Shortly after his arrival at Fort Sill, the applicant complained of left knee pain.  His DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings), dated 9 November 1994, shows:

	a.  He underwent an entrance physical examination where he was diagnosed as having chronic left knee pain after arthroscopic surgery, exercise induced bronchospasm, which existed prior to service (EPTS).  

	b.  The attending physician remarked on the DA Form 4707 that the applicant was found unfit for enlistment or induction in accordance with medical fitness standards in effect and, in the opinion of the attending physician, his condition was EPTS.  He further recommended that a Medical Board evaluate the applicant for consideration for separation.

4.  On 15 November 1994, the medical approving authority approved the findings of the EPSBD and recommended that the applicant be separated from the service under the provisions of paragraph 5-11 of Army Regulation 635-200 (Personnel Separations). 

5.  On 16 November 1994, the applicant concurred with the recommendation of the EPSBD and requested discharge from the Army without delay.  Item 21 (Action by Service Member) of the DA Form 4707 shows the applicant understood that legal advice of an attorney employed by the Army was available to him and that he also could consult with a civilian counsel at his own expense.

6.  On 16 November 1994, his immediate commander recommended his discharge and on 21 November 1994, the discharge authority approved the applicant's separation from the Army.  Accordingly, the applicant was released from active duty to the control of the ARNG on 23 November 1994.

7.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of paragraph 5-11 of Army Regulation 635-200, by reason of failure to meet procurement medical fitness standards with an "entry level status" (uncharacterized) character of service.  He completed 1 month of creditable service.


8.  He was also concurrently discharged from the ARNG on the same date and issued an NGB Form 22 that reflects an uncharacterized character of service.  

9.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 5-11 specifically provides that Soldiers who are not medically qualified under procurement medical fitness standards when accepted for enlistment, or who became medically disqualified under these standards prior to entry on active duty, active duty for training, or initial entry training will be separated.  A medical proceeding conducted by an EPSBD, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within 6 months of the Soldier's initial entrance on active duty, that the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at the time of enlistment, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501, chapter 3.  The characterization of service for Soldiers separated under this provision will normally be honorable, but will be uncharacterized (entry level status) if the Soldier has not completed more than 180 days of creditable continuous active duty service prior to the initiation of separation action.

10.  Chapter 3 of Army Regulation 635-200 describes the different types of characterization of service.  It provides, in pertinent part, that an uncharacterized separation is an entry-level separation.

	a.  A separation will be described as an entry-level separation if processing is initiated while a member is in an entry-level status, except when the characterization of under other than honorable conditions is authorized or when the Secretary of the Army, on a case-by-case basis, determines that a honorable discharge is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.  

	b.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was found medically unqualified for service immediately after reporting for basic combat training.  The EPSBD proceedings clearly established that he suffered from a disqualifying medical condition that existed prior to his service.  Because this condition was identified within his first 180 days of service, his discharge was appropriately characterized as an entry level character of service (uncharacterized).  

2.  During the first 180 days of continuous active military service, a member's service is under review.  When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant an under other than honorable conditions discharge.  An honorable characterization may be given only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and is approved by the Secretary of the Army.  

3.  The entry-level separation is given regardless of the reason for separation.  This uncharacterized discharge is neither positive nor negative; it is not derogatory.  It simply means the Soldier did not serve long enough to qualify for a specified characterization of service.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He was assigned an entry level status character of service which is appropriate in his case.  

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 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)                                         AR20110023159



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ABCMR Record of Proceedings (cont)                                         AR20110023159



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