IN THE CASE OF:
BOARD DATE: 10 July 2012
DOCKET NUMBER: AR20120000290
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 the characterization of his discharge on 17 August 1995 be changed to honorable instead of uncharacterized.
2. The applicant states his discharge should be honorable as indicated in his records at the Department of Veterans Affairs (VA).
3. The applicant provides:
* two letters from the VA, dated 16 December 2011
* his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 17 August 1995
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. He enlisted in the Regular Army on 23 May 1995 for a period of 4 years. He did not complete basic combat training.
3. On 7 August 1995, an Entrance Physical Standards Board (EPSBD)
diagnosed him with ulcerative colitis, existing prior to service (EPTS).
a. Although he denied having a prior history of rectal bleeding, he had to have had a predisposition for ulcerative colitis which existed prior to service. His ulcerative colitis flared with basic training.
b. The board recommended he be separated from the service for this EPTS condition. He was given a temporary profile to suspend training pending discharge.
4. On 10 August 1995, he acknowledged that he was informed of the findings of the EPSBD and advised that legal counsel from an Army attorney was available to him or he may consult a civilian attorney at his own expense. He was further advised that he may request to be discharged from the Army without delay or he may request retention on active duty. The applicant concurred with the proceedings and requested to be discharged from the Army without delay.
5. On 17 August 1995, he was discharged by reason of his failure to meet procurement medical fitness standards. He had completed 2 months and
25 days of active service that was determined to be uncharacterized.
6. He submitted two letters, dated 16 December 2011, from the VA.
a. One letter certifies he was honorably discharged [for VA purposes] from the U.S. Armed Forces and provides his dates of Army service as 23 May 1995 to 17 August 1995.
b. The second letter certifies he is receiving service-connected disability compensation and provides the amount and percent of disability.
7. Army Regulation 635-200 (Personnel Separations) provides the basic authority for the separation of enlisted personnel.
a. Paragraph 5-11 specifically provides that Soldiers who were not medically qualified under procurement medical fitness standards, when accepted for enlistment, or who became medically disqualified under these standards prior to entrance on active duty or active duty training or initial entry training will be separated. Such conditions must be discovered during the first 6 months of active duty and will result in an EPSBD proceeding.
b. The characterization of service for Soldiers separated under this provision of regulation will normally be honorable, but will be uncharacterized if the Soldier is in an entry level status.
c. The Glossary defines entry-level status for Regular Army Soldiers as the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break of more than 92 days of active military service.
8. Code of Federal Regulations Title 38, Section 3.12 (a) provides for an administrative determination by the VA that an "other than honorable discharge was issued under conditions other than dishonorable" to establish basic eligibility for VA benefits.
DISCUSSION AND CONCLUSIONS:
1. The VA, in accordance with its own policies and regulations, may make an administrative decision as to whether an individual's period of service is considered as under conditions other than dishonorable for the purpose of VA benefits. This administrative decision does not establish error or injustice in the Army's characterization of the applicant's service.
2. The EPSBD recommended he be separated from the service. He
concurred with the EPSBD proceedings and requested discharge from the Army without delay. Therefore, his administrative separation was accomplished in compliance with applicable regulation with no indication of procedural errors that would tend to jeopardize his rights.
3. He had been on active duty for less than 180 days. Therefore, the applicant was still in an entry level status and the uncharacterized discharge he received is correct and in accordance with the regulation.
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) AR20120000290
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ABCMR Record of Proceedings (cont) AR20120000290
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