IN THE CASE OF:	  

		BOARD DATE:	    24 January 2013

		DOCKET NUMBER:  AR20120010747 


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 his uncharacterized discharge be changed to a general, under honorable conditions discharge.

2.  The applicant states there was no misconduct.  He was discharged due to a ganglion cyst the doctors could not fix that grew on his toe while he was on active duty.  He did not want to leave the U.S. Army Reserve (USAR).  His doctor advised him to go back home and have his foot problem taken care of.  He did not have a problem [with his foot] until he was in basic combat training (BCT) and it hasn't been right since.

3.  The applicant provides orders, his DA Form 2-1 (Personnel Qualification Record), 12 pages of medical records, and a memorandum.

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 USAR on 18 May 1990.  On 18 May 1990, in conjunction with his enlistment in the USAR, the applicant underwent a medical examination.  

3.  His records contain a Standard Form 88 (Report of Medical Examination), dated 18 May 1990, that shows he was found to be physically fit except his feet were found to be abnormal due to an “aching” type of pain in his left big toe.  He was found to be medically qualified for enlistment.

4.  He entered initial active duty for training (ADT) on 10 July 1990.  He was assigned to the 3rd Battalion, 61st Infantry Regiment, 4th Training Brigade, Fort Jackson, SC, on 14 July 1990 for BCT.

5.  He was seen and treated at Moncrief Army Community Hospital (MACH), Fort Jackson, SC, as follows on:

* 18 July 1990, for a complaint of neck and back pain; he stated he had been involved in a motor vehicle accident 3 years prior; he was diagnosed with a muscle spasm and prescribed medication
* 23 July 1990, for a complaint of muscle spasms in his neck and shoulders; the examining physician found a lump on the 1st digit of his left foot that was tender to the touch but showed no signs of infection; he was prescribed medication for his muscle spasms

6.  On 25 July 1990, he was seen at MACH for a complaint of pain while running, marching, and weight bearing.  He denied he had incurred any [recent] direct trauma to his left foot.  He was diagnosed with a ganglion cyst of the 1st digit of his left foot.  The cyst was aspirated, he was given a 10 day profile, and he was prescribed medication.

7.  On 31 July 1990, he was seen at MACH for a reevaluation of his ganglion cyst.  The examining physician found his left big toe was painful upon palpitation and that it had existed prior to his entry in the service (EPTS).  The evaluating physician found him medically unfit for enlistment in accordance with current medical fitness standards and determined his ganglion cyst was EPTS.  

8.  On 1 August 1990, he went before an Entrance Physical Standards Board (EPSBD).  The board found he had been seen at MACH on numerous occasions for a painful ganglion cyst.  The lesion had been aspirated but had reoccurred.  His entrance exam described him as having an “aching” type of pain in the left great toe.  The cyst was noted as over the left 1st metacarpal phalangel (big toe) joint and was painful to palpitation.  

9.  The EPSBD determined the cyst was EPTS and was not service aggravated.  The board recommended the applicant be separated for failing to meet medical procurement standards in accordance with chapter 3, Army Regulation 40-501 (Standards of Medical Fitness).

10.  On 1 August 1990, the applicant checked the appropriate block on the DA Form 4707 (EPSBD Proceedings) to indicate he concurred with the board findings and recommendations and he requested to be discharged from the Army without delay.

11.  On 3 August 1990, he was counseled by his unit sergeant major (SGM) of his option to request retention on active duty or separation from the USAR due to failing to meet medical standards that existed when he entered active duty.  The SGM also counseled him that upon his separation, he would lose any Department of Veterans Affairs benefits and entitlements that he might have been eligible for.  

12.  On 3 and 7 August 1990, respectively, his immediate commander and senior commander recommended approval of the applicant's request for separation.

13.  The approving authority subsequently approved the applicant's request.

14.  Orders Number 160-783, dated 15 August 1990, issued by Headquarters, U.S. Army Training Center and Fort Jackson, discharged him from the USAR effective 17 August 1990 with an uncharacterized discharge.  He completed 1 month and 5 days of net active service (35 days).

15.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 states a separation will be described as entry level with uncharacterized service if the Soldier has less than 180 days of continuous active duty service at the time separation action is initiated.  

16.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states a DD Form 214 will only be prepared for Reserve component Soldiers completing 90 days or more of continuous ADT.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows in August 1990 an EPSBD found the applicant medically unfit for enlistment in accordance with current medical fitness standards and determined his ganglion cyst existed prior to his entry into military service.  

2.  The applicant concurred with the recommendation of the EPSBD and requested discharge from the USAR.  On 17 August 1990, he was discharged with an uncharacterized character of service.  He was separated while he was in an entry-level status after completing only 45 days of active service, so he was not issued a DD Form 214 and he correctly received an uncharacterized character of service.  

3.  An uncharacterized character of service is not meant to be a negative reflection of a Soldier's military service.  It merely means the Soldier has not served on active duty long enough for his or her character of service to be rated.  In view of the foregoing, there is no basis for granting the 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)                                         AR20120010747





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ABCMR Record of Proceedings (cont)                                         AR20120010747



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