IN THE CASE OF:	  

		BOARD DATE:	  27 November 2012

		DOCKET NUMBER:  AR20120007084 


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, in effect, an upgrade of his uncharacterized entry level discharge to a general under honorable conditions discharge or a medical discharge.

2.  The applicant states he was injured in boot camp by being issued boots which were too small.

3.  The applicant does not provide any additional evidence.

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 U.S. Army Reserve Delayed Entry Program (DEP) for 8 years on 29 August 1989.  On 9 October 1989, he was discharged from the DEP and enlisted in the Regular Army for 4 years on 10 October 1989.  

3.  He was assigned to Company D, 589th Engineer Battalion, 132d Engineer Brigade, U.S. Army Corps of Engineers and Fort Leonard Wood, Fort Leonard Wood, MO, for training.   

4.  A DA Form 5181-R (Screening Note of Acute Medical Care), dated 2 November 1989, shows:

* the applicant was seen in the Troop Medical Clinic (TMC)
* his chief complaint was his feet
* his feet issue had been going on for 2 weeks and he was in his 2d week of training
* the form indicates "possible stress reaction because of boots"

5.  A DA Form 5181-R, dated 3 November 1989, shows the applicant returned to the TMC for treatment due to "toe numbness and sore balls of feet."  He also stated his "boots may have been the incorrect size."  The attending physician noted the following:

* bunion tenderness
* bubble both pair of boots to accommodate bunion

6.  Further review of the applicant's medical records show he was seen by medical personnel for a total of 19 visits during the period 2 November 1989 through 12 January 1990 with feet complaints.

7.  A DA Form 4856 (General Counseling Form), dated 13 January 1990, shows the applicant was counseled for excessive sick call.  The form also indicates "doctors have determined that there is nothing wrong." 

8.  A DA Form 4856, dated 16 January 1990, shows the applicant was counseled for a lack of motivation and not keeping up with the platoon on marching to the training range.  The form also indicates "[Applicant] has been cleared by a doctor that you are fit for duty."  A second DA Form 4856, also dated 16 January 1990, shows the applicant failed to complete his Army Physical Fitness Test (APFT) II by not completing the run.  This form also indicates "the doctor says your [you're] fit for duty."

9.  A DA Form 4856, dated 17 January 1990, shows the applicant was counseled for his past medical history, failure of APFT II test (refused to do run), failure to keep up with company in marching to RG4 for training, and desire to leave the Army.  The form indicates "medical officers have determined that you are fit for duty with no codes."

10.  On 22 January 1990, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, entry level performance and conduct.  Specifically, the immediate commander stated that the applicant lacked the necessary motivation and did not possess the self-discipline needed to become a productive Soldier.  

11.  On 22 January 1990, the applicant acknowledged receipt of the notification of separation action and waived his right to consult with counsel and consideration of his case by an administrative separation board.  He also acknowledged that he understood that if his discharge was approved, he would receive an entry level separation with an uncharacterized service.  

12.  On 24 January 1990, the separation authority reviewed the proposed separation action and approved an entry-level separation (uncharacterized) in accordance with Army Regulation 635-200, chapter 11.  On 26 January 1990, the applicant was discharged accordingly.

13.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of chapter 11 of Army Regulation 635-200, by reason of entry level performance and conduct, with an uncharacterized character of service.  This form further confirms he completed a total of 3 months and 17 days of creditable active service.  

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of this regulation sets policy and provides guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in entry-level status.  It states in pertinent part that when separation of a member in entry-level status is warranted by unsatisfactory performance or minor disciplinary infractions (or both) as evidenced by inability, lack of reasonable effort, or failure to adapt to the military environment, the member normally will be separated per this chapter.  This separation policy applies to enlisted members of the Regular Army, who have completed no more than 180 days active duty on current enlistment by the date of separation, have demonstrated that they are not qualified for retention for one or more of the following reasons:  Cannot or will not adapt socially or emotionally to military life, cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline; have demonstrated character and behavior characteristics not compatible with satisfactory continued service; or failed to respond to counseling.

15.  Chapter 3 of Army Regulation 635-200 describes the different types of characterization of service.  It states in pertinent part that an uncharacterized separation is an entry-level separation.  A separation will be described as an entry-level separation if processing is initiated while a member is in entry-level status, except when characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case or when the Secretary of the Army, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.

16.  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.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  

17.  Paragraph 3-2b states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a member is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his/her rank or grade until the member is scheduled for separation/retirement, creates a presumption that the Soldier is fit. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his uncharacterized entry level separation to a general under honorable conditions discharge or a medical discharge was carefully considered.

2.  The evidence of record shows that while in training, the applicant experienced bunion problems.  Although his counseling forms show he was cleared by medical personnel, he was nevertheless counseled for a lacked motivation, excessive sick call, and failure to complete an APFT run.   Accordingly, his immediate commander initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  Even if he suffered an injury or an illness, the mere presence of impairment does not, in and 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.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

4.  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.  

5.  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

6.  In view of the foregoing, there is an insufficient evidentiary basis for 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)                                         AR20120007084



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ABCMR Record of Proceedings (cont)                                         AR20120007084



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