IN THE CASE OF:	  

		BOARD DATE:	  9 August 2012

		DOCKET NUMBER:  AR20120002629 


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 her uncharacterized discharge to an honorable discharge for medical reasons.

2.  The applicant states the reason for her separation should be medical instead of unsatisfactory performance and the characterization of her service should be honorable instead of uncharacterized.  She claims she was discharged due to an injury to her left knee.

3.  The applicant provides no documentary evidence in support of her application.  

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 Regular Army on 23 May 1996.  Her record shows she did not complete military occupational specialty (MOS) training and she was advanced to private (PV2)/E-2 on 23 November 1996, which is the highest rank/grade she held on active duty.

3.  On 8 November 1996, the unit commander recommended the applicant be relieved from class based on the fact she was being processed for separation under chapter 11 (Entry level performance and conduct), Army Regulation     635-200 (Personnel Separations), and on 15 November 1996, this request was approved by proper authority.  

4.  The applicant's record contains a Standard Form (SF) 88 (Report of Medical Examination), dated 12 December 1996, that documents her separation medical examination.  This document shows she had been treated for and suffered from knee pain and depression.  It also indicates that her physical profile serial system was 111111 (indicating she possessed a high level of medical fitness) and that she suffered from no disabling medical or mental conditions that would have supported her separation processing through medical channels.

5.  On 13 December 1996, the unit commander notified the applicant he was initiating action to separate her under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, by reason of unsatisfactory performance.  The unit commander cited the applicant's demonstrated inability to adapt to military service.  He further informed the applicant he was recommending an entry level status (ELS) separation.

5.  The applicant consulted with counsel and she was advised of the basis for the contemplated separation action and its effects; the rights available to her; and the effect of any action on her part to waive those rights.  She completed an election of rights wherein she elected not to submit statements in her own behalf and acknowledged that she would be receiving an "Uncharacterized" discharge.	

6.  On 13 December 1996, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 13 and directed she receive an ELS.  On 13 February 1997, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued at the time shows her service was described as "Uncharacterized" and that she had completed 8 months and 21 days of creditable active service.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-9 states a separation will be described as entry-level with service uncharacterized if, at the time separation action is initiated, the Soldier has less than 180 days of continuous active duty service.

	b.  Chapter 13, in effect at the time, provided for the separation of personnel due to unsatisfactory performance, conduct, or both, while in an entry-level status.  An uncharacterized service description is normally granted to Soldiers separating under this chapter.  A general discharge is not authorized under entry-level status conditions and an honorable discharge is rarely ever granted.  An honorable discharge may be given only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 4-3 contains guidance on enlisted Soldiers subject to administrative separation.  It states an enlisted Soldier may not be referred for, or continue physical disability processing when action has been started under any regulatory provision that authorizes a characterization of service of under other than honorable conditions.  If the case comes within the limitations above, the commander exercising general court-martial jurisdiction over the Soldier may abate the administrative separation if he/she finds the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions, or other circumstances warrant disability processing instead of alternate administrative separation. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to change the reason for her discharge to medical and to change the character of her service to honorable because she was discharged due to a knee injury has been carefully considered.  However, there is insufficient evidence to support this claim.  The evidence of record confirms that while she was treated for and suffered from a knee condition and depression, neither of these conditions was disabling and/or supported her separation processing through the PDES.

2.  The applicant's separation processing was initiated on 15 November 1996, within the 180 timeframe allowed for entry level separations, when the applicant was relieved from class in order to be processed for separation.  

3.  The record shows her separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were protected throughout the separation process.

3.  The record also shows the applicant's service was described as uncharacterized as a result of being separated while in an entry-level status.  A Soldier is in an entry-level status, or probationary period, for the first 180 days of continuous active duty and the issuance of a general discharge to a member in 
such status is not authorized.  An honorable discharge may be granted only in cases that are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.  There is no such unusual circumstance present in the applicant's record.

4.  Therefore, absent any evidence that the applicant's existing medical conditions were disabling at the time of her discharge processing or of any error or injustice in the discharge process, there is an insufficient evidentiary basis to support granting the applicant's requested relief.

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)                                         AR20120002629



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ABCMR Record of Proceedings (cont)                                         AR20120002629



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