IN THE CASE OF:	  

		BOARD DATE:	  20 December 2012

		DOCKET NUMBER:  AR20120010854 


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 upgrade of his uncharacterized character of service to honorable.

2.  The applicant states he had surgery on his left knee prior to his entry on active duty.  While performing physical training, his knee swelled, x-rays were taken, and range of motion testing was performed.  A few weeks later he was reexamined and it was determined he would be discharged from service.  He further states he planned on retiring from the Army and feels like he was just swept out the door although he was encouraged by his chain of command to reenlist after 2 years.

3.  The applicant provides no 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 Regular Army on 20 September 1988 for a period of 4 years for military occupational specialty 45B (Small Arms Repairer).

3.  The complete facts and circumstances of his discharge, as well as his service medical records, are not available for review.  However, his record contains an undated DA Form 2496 (Disposition Form), subject:  Medical Examination Statement of Option, that was authenticated by the applicant.  He indicated he did not desire a medical examination prior to his discharge.

4.  On 18 October 1988, the applicant's medical records were reviewed by a medical officer who determined a medical examination of the applicant was not required. 

5.  On 26 October 1988, the applicant's commander recommended the applicant be discharged from service under the provisions of Army Regulation 635-200 (Personnel Separation – Enlisted Personnel), paragraph 5-11, by reason of not meeting procurement medical fitness standards.  The commander stated he was being separated due to a history of medial collateral ligament rupture with surgical repair in 1986.  The applicant had been in basic training for 2 weeks and he was unable to perform the duties required of a trainee secondary to pain about his left knee; therefore, it was determined the applicant would not be able to continue his training in the military.

6.  The applicant's record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 2 November 1888 under the provisions of Army Regulation 635-200, paragraph 5-11, by reason of not meeting procurement medical fitness standards – no disability, with service uncharacterized.  He completed 1 month and 13 days of creditable active service.

7.  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 entrance physical standards board (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(Standards of Medical Fitness), 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his uncharacterized discharge should be upgraded to an honorable discharge.

2.  The evidence of record shows the applicant was found medically unqualified for service shortly after reporting for basic combat training.  A copy of the completed EPSBD proceedings is not available for review with this case.  However, evidence shows he suffered from a disqualifying medical condition which existed prior to his service.  Because this condition was identified within his first 180 days of service, his discharge was appropriately classified as "uncharacterized."

3.  In the absence of evidence to the contrary, it is presumed that the applicant concurred with the recommendation of the EPSBD and requested discharge from the Army without delay.  It is also presumed he 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.  All requirements of law and regulation and the rights of the applicant are presumed to have been fully protected throughout the separation process.

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 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.  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.

5.  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)                                         AR20120010854



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ABCMR Record of Proceedings (cont)                                         AR20120010854



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