IN THE CASE OF:	  

		BOARD DATE:  29 January 2013

		DOCKET NUMBER:  AR20120011199 


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 service be changed from uncharacterized to honorable on the following documents:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 28 February 1985
* National Guard Board (NGB) Form 22 (Report of Separation and Record of Service) with an effective date of 28 February 1985

2.  The applicant states he does not have a current DD Form 214 or NGB
Form 22 that accurately depicts the investigation results from the Department of Veterans Affairs (VA) or in his opinion, the truth.  He states after a series of phone calls and emails with Chief Warrant Officer Three (CW3) K_____ in the office of the Deputy Chief of Staff for Personnel (DCSPER), Joint Force Headquarters, Oregon Army National Guard (ORARNG), CW3 K_____ sent him a letter outlining what was done in his case in 1985 and one document he had never viewed in any context before.  The document is a photocopy of a statement without a date or status of the person who illegibly signed that denied all right/benefits owed to him from a point of responsibility as it is a completely false and fraudulent statement that was a deliberate act and clearly a lie put in writing.

3.  He states his current NGB Form 22 listing his discharge as uncharacterized has in fact become a huge impediment to returning to gainful employment as it is 

perceived and treated by potential employers as if it were a dishonorable/bad conduct discharge.  He is presently being discriminated against and passed over for lesser qualified people in the labor market due to the characterization of the discharge being anything other than honorable.

4.  The applicant provides:

* an emergency room report from Good Samaritan Hospital, Corvallis, OR, dated 27 September 1984,
* a report of x-ray findings from Good Samaritan Hospital, dated
27 September 1984
* orders for initial active duty for training (IADT), dated 3 December 1984
* a letter from Dr S______, dated 26 December 1984
* DD Form 214 with a separation date of 28 February 1985
* NGB Form 22 with an effective date of 28 February 1985
* a medical examination, dated 14 March 1985
* a pre-admission history and physical examination from Good Samaritan Hospital, dated 14 August 1985
* an operative report from Good Samaritan Hospital, dated 14 August 1985
* an operative report from Lake Tahoe Surgery Center Zephyr Cove, NV, dated 11 May 2004
* a treatment report from Dr. W____, Bend, OR, dated 24 April 2012
* a letter from Lieutenant Colonel (LTC) C______, dated 5 December 2005
* 12 letters to the VA concerning his claim before that Agency, dated from 18 September 2005 to 26 July 2011
* VA Regional Office (VARO), Portland, Supplemental Statement of the Case, dated 6 March 2009
* an award letter from VA Appeals Management Center, Washington, DC, dated 19 March 2010
* VARO, Seattle, WA Rating Decision, dated 18 March 2010
* a letter from VA, Portland, OR, dated 2 March 2012
* two letters from the applicant to the Oregon Military Department, Salem, OR, dated 26 September 2011 and 6 March 2012
* emails from the applicant to CW3 K_____, at DCSPER, ORARNG, dated from 19 March to 11 May 2012
* two letters from DCSPER, ORARNG, Salem, OR, dated 16 and 20 March 2012,
* a receipt from the United States Postal Service
* an article from an unknown periodical concerning other than honorable discharges limiting veteran's job protections

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 ORARNG on 7 April 1984.

3.  He provided an emergency room report, dated 27 September 1984.  He suffered a blow to the right shoulder when his truck tumbled down a hillside and overturned at least once.  The diagnosis was contusion of right posterior shoulder with mild sprain of right acromioclavicular (AC) joint (a joint at the top of the shoulder).  The x-ray report he provided, dated 27 September 1984, was negative.

4.  He provided orders, dated 3 December 1984, that ordered him to IADT on 
4 January 1985 for 12 weeks and 3 days or upon completion of military occupational specialty training.

5.  He provided a letter from Dr. S______, dated 26 December 1984.  The doctor stated the applicant was undergoing rehabilitation exercises for an injury to his right shoulder.  The doctor believed he had an apparent AC joint separation.  The applicant was making good progress and he had full range of motion but poor strength.  It was the doctor's opinion that basic training with the ORARNG at that time would be detrimental, especially if he was subjected to situations requiring forceful use of his shoulder before it was fully healed.

6.  Medical proceedings establishing that a medical condition was identified by appropriate military authorities within 4 months of his initial entrance on IADT were not available for review.

7.  On 28 February 1985, he was released from active duty and returned to his ORARNG unit because he did not meet procurement medical fitness standards   He did not complete basic combat training.  He completed 1 month and 25 days of net active service during this period that was uncharacterized.  
8.  On 28 February 1985, he was discharged from the ORARNG because he did not meet medical fitness standards.  He had completed 10 months and 24 days of net ARNG service during this period.  His NGB 22 shows IADT - 4 January 1985 to 28 February 1985.  

9.  The remaining medical documents provided by the applicant show surgeries and treatment for his right AC joint separation following his release from active duty and discharge from the ORARNG.

10.  The 12 letters to the VA, dated from 18 September 2005 to 26 July 2011, provided information and evidence concerning his claim for service-connection for degenerative joint disease in his right shoulder.

11.  He provided a letter from the DCSPER, ORARNG, dated 16 March 2012.  A review of his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF), was conducted and confirmed he was discharged because he did not meet the medical standards of Army Regulation 40-501 (Standards of Medical Fitness), paragraph 2-9c.  The reason his service was designated as "Uncharacterized" was that is he was in an "Entry-level Status" at the time of his discharge.  Army Regulation 635-200 (Personnel Separations-Enlisted Personnel) defines entry-level status and directs the characterization of service as uncharacterized for personnel separated in an entry-level status.

12.  He provided a letter from the DCSPER, ORARNG, dated 20 March 2012, denying his request for a change of the characterization of his service on his NGB Form 22.

13.  The VARO Seattle Rating Decision, dated 18 March 2010, granted service-connection for his degenerative joint disease in his right shoulder based on a presumptive condition diagnosed at a compensable level within the requisite time period after his period of active duty.

14.  Army Regulation 40-501, paragraph 2-9c, then in effect, provided the causes for rejection for appointment, enlistment, and induction for the wrist, forearm, elbow, arm, and shoulder.  The paragraph states a cause for rejection is recovery 
from disease or injury of wrist, forearm, elbow, arm, or shoulder with residual weakness, or symptoms such as to preclude satisfactory, performance of duty.

15.  Army Regulation 635-200, then in effect, provided the basic authority for the separation of enlisted personnel.  Chapter 5 provided for separation for convenience of the Government.

	a.  Paragraph 3-9 stated a separation would be described as entry-level with service uncharacterized if processing was initiated while a Soldier was in entry-level status, except when:

		(1)  Characterization under other than honorable conditions was authorized under the reason for separation and was warranted by the circumstances of the case.

		(2)  The Secretary of the Army, on a case-by-case basis, determined that characterization of service as honorable was clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.

		(3)  The Soldier had less than 181 days of continuous active military service, had completed Initial Entry Training, had been awarded an MOS, and had reported for duty at a follow-on unit of assignment.

	b.  Paragraph 5-5 stated personnel being separated under this section would be awarded a character of service of honorable, under honorable conditions, or an entry-level separation.

	c.  Paragraph 5-11 specifically provided that Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment would be separated.  Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by appropriate military authority within 4 months of the member's initial entrance on AD or ADT which:

* would have permanently disqualified him or her for entry into the military service had it been detected at that time
* does not disqualify him or her for retention in the military service under the provisions of Army regulation 40-501, chapter 3

	d.  The Glossary defines entry-level status.  For ARNG Soldiers, entry-level status begins upon enlistment in the ARNG.  For Soldiers ordered to IADT for one continuous period, entry level status terminates 180 days after beginning training.

16.  Title 38, Code of Federal Regulations (CFR), 3.12 (Character of discharge) defines eligibility for compensation for former service members.

	a.  Paragraph 3.12(a) provides that if the former service member did not die in service, pension, compensation, or dependency and indemnity compensation is not payable unless the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable.

	b.  Paragraph 3.12(k) (Uncharacterized separation) provides that where enlisted personnel are administratively separated from service on the basis of proceedings initiated on or after 1 October 1982, the separation may be classified as one of three categories of administrative separation that do not require characterization of service by the military department concerned.  One of these categories is entry level-separations.  Uncharacterized administrative separations of this type shall be considered under conditions other than dishonorable.

DISCUSSION AND CONCLUSIONS:

1.  The administrative decision by the VA concerning his character of service is in accordance with Title 38 CFR 3.12.  However, this decision was made solely to determine his eligibility to receive disability benefits from that agency and has no bearing on the characterization of service provided by the Army and the ORARNG.

2.  Medical proceedings establishing that a medical condition was identified by appropriate military authority within 4 months of his initial entrance on IADT were not available for review.  However, based on the statement from DCSPER, ORARNG that he was discharged under the provisions of Army Regulation
40-501, paragraph 2-9c, it appears he may have not fully recovered from the right shoulder injury he incurred prior to entry on IADT.

3.  Army Regulation 635-200, in effect at the time, stated that with three exceptions, a separation would be described as entry-level with service uncharacterized if processing was initiated while a Soldier was in entry-level status.  The applicant did not fall within the three exceptions provided in the regulation.

4.  Based on the date he began his IADT, his entry level status would have ended on 3 July 1985.  However, he was separated from active duty and discharged from the ORARNG on 28 February 1985.   He was in an entry-level 
status on 28 February 1985.  Therefore, because he was in an entry-level status at the time of his release from active duty, his period of active service was properly determined to be uncharacterized in accordance with the regulation in effect at the time.  Because he was in an entry-level status at the time of his discharge from the ORARNG his service in the ORARNG was properly determined to be uncharacterized in accordance with the regulation in effect at the time.
5.  In view of the above, there is no error or injustice in the characterization of his service.

6.  The applicant is advised an uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service.  It merely means that the Soldier had not been in the Army long enough for his or her character of service to be rated as honorable or otherwise.  He may want to so inform any current or potential employers.

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)                                         AR20120011199



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ABCMR Record of Proceedings (cont)                                         AR20120011199



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