IN THE CASE OF:	  

		BOARD DATE:	  30 May 2013

		DOCKET NUMBER:  AR20120020145 


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 entry level separation to an honorable discharge due to physical disability.

2.  The applicant states he was injured in a training accident and has service connected and service aggravated disabilities.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 (USAR) and entered Initial Active Duty for Training on 4 August 1983.
3.  Commencing on 16 August 1983 he was counseled on 17 occasions for having a poor attitude, poor performance, failure to follow instructions, lack of motivation, lack of self discipline, and failure to complete physical training evolutions.  Ha also received nonjudicial punishment (NJP) under the provisions of Article 15 (Uniform Code of Military Justice) for willful disobedience of a lawful order.

4.  The applicant was seen at sick call for complaints of sore feet and for falling and injuring his tailbone.

5.  A 26 September 1983 physical examination found him qualified for separation with a 1 1 1 1 1 1 profile.

6.  On 14 October 1983, the applicant was notified of proposed separation including possible discharge from the USAR for character and behavior that was incompatible with continued military service.

7.  The separation authority approved the proposed separation and directed that the applicant be released from active duty and discharged from the USAR.

8.  On 8 November 1983 the applicant was discharged in accordance with the provisions of Army Regulation 635-200, chapter 11 with an uncharacterized separation due to entry level performance and conduct.  He had completed 3 months and 5 days of active duty.

9.  There is no indication the applicant ever applied to the Army Discharge Review Board.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

	c.  Chapter 11 of the regulation in effect at the time provided for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry-level status.  This provision applied to individuals who had demonstrated they were not qualified for retention because they:

* could not adapt socially or emotionally to military life
* lacked the aptitude, ability, motivation, or self discipline for military service
* demonstrated characteristics not compatible with satisfactory continued service

11.  The separation policy applied to Soldiers who could not meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline.  Separation under this chapter applied to Soldiers who were in an entry-level status (i.e., had completed no more than 180 days of continuous active duty before the date of the initiation of separation action).  An uncharacterized description of service was required for separation under this chapter.

12.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It 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 physical disability incurred or aggravated in service.  It states the mere presence of an impairment does not, 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  

DISCUSSION AND CONCLUSIONS:

1.  The medical evidence of record indicates that the applicant was medically fit for retention at the time of his separation.  He has submitted no probative medical evidence to the contrary.

2.  There is no documentation to support the applicant's contention and no rationale to support the implied conclusion that those alleged circumstances would warrant the requested relief.

3.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The uncharacterized discharge is required by the governing regulation.

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)                                         AR20120020145



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ABCMR Record of Proceedings (cont)                                         AR20120020145



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