IN THE CASE OF:	  

		BOARD DATE:	  18 April 2013

		DOCKET NUMBER:  AR20120017371 


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 correction of his uncharacterized discharge to an honorable discharge.

2.  The applicant states his status has changed to a disabled veteran as well as honorable by the Department of Veterans Affairs (VA).

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* VA Rating Decision

ONSIDERATION 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 military records show he was found qualified and enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) on 31 March 1997.  He was discharged from the DEP on 25 August 1997 for immediate enlistment in the Regular Army.  He enlisted in the Regular Army in pay grade E-1 on 26 August 1997 for 3 years.  He did not complete advanced individual training and was not awarded a military occupational specialty (MOS).

3.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his records contain and he provides a copy of his DD Form 214 which shows he was discharged in pay grade E-2 on 28 March 1998 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-11, by reason of "failure to meet procurement medical fitness standards."  His service was uncharacterized.  He was credited with completing of 6 months and 25 days of net active service.

4.  Item 26 (Separation Code) of his DD Form 214 shows separation program designator (SPD) code "JFW."

5.  He provides a copy of a VA Rating Decision, dated 23 June 2010, which shows he was granted a 10-percent disability rating for service-connected right knee strain.

6.  Army Regulation 635-200 provides 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 processing is initiated while a Soldier is in an entry-level status, except when the Soldier has less than 181 days of continuous active military service, has completed initial entry training, has been awarded an MOS, and has reported for duty at a follow-on unit of assignment.

	b.  Paragraph 5-1 states the characterization of service for Soldiers separated under this provision of the regulation will normally be honorable, but will be uncharacterized if the Soldier is in an entry-level status.  A Soldier is in an entry-level status if the Soldier has not completed more than 180 days (6 months) of creditable continuous active duty prior to initiation of the separation action.

	c.  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, 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 that time, and that 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.

7.  Army Regulation 635-5-1 (Separation Program Designator Codes) shows SPD code "JFW" was appropriate when the narrative reason for involuntary discharge was "failure to meet procurement medical fitness standards" and the authority for discharge was Army Regulation 635-200, paragraph 5-11.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the facts and circumstances which led to his discharge.  However, his record contains a DD Form 214 that shows he was discharged on 28 March 1998 for failing medical and physical procurement standards.

2.  Notwithstanding the fact that he completed 6 months and 25 days of net active service, it is presumed that separation action was initiated prior to completing 180 days (6 months) of service.  Furthermore, he had not completed initial entry training and was not awarded an MOS at the time of his discharge.  Therefore, his service was properly uncharacterized.

3.  It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He provided no information that would indicate the contrary.  Further, it is presumed his discharge accurately reflects his overall record of service during this period.  He also has not provided evidence sufficient to mitigate the character of his discharge.

4.  The evidence of record shows he was discharged under the provisions of Army Regulation 635-200, paragraph 5-11.  He was assigned SPD code "JFW" which is commensurate with and corresponds with his narrative reason for separation.

5.  In view of the foregoing, there is no basis for granting his request.


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 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)                                         AR20120017371



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ABCMR Record of Proceedings (cont)                                         AR20120017371


   
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