IN THE CASE OF:	   

		BOARD DATE:	  18 July 2013

		DOCKET NUMBER:  AR20120022061 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to show he was issued an honorable discharge or a medical discharge.

2.  The applicant states he was injured during basic training.  His right shoulder was dislocated and his right rotator cuff was torn.  He was told it must have been a pre-existing condition and he was discharged without proper status.  He recently began working for the Department of Veterans Affairs (VA) and has been told by several veterans that his discharge was characterized incorrectly as he was injured during basic training.  He was injured while in the service for his country after he volunteered to serve his country.  

3.  The applicant provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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) on 28 April 1989.  He was ordered to initial active duty training (IADT) for approximately 17 weeks.  He entered IADT on 4 January 1990.  He did not complete IADT and he was not awarded a military occupational specialty.

3.  On 24 January 1990, he was given a temporary physical profile with a T4 PULHES for right shoulder pain.  His limitations were no push-ups, no overhead lifting greater than 15 pounds, and no physical training or testing.  

4.  A DA Form 2496 (Disposition Form), dated 24 January 1990, shows the Chief, Department of Surgery, diagnosed the applicant with Impingement Syndrome (swimmer’s shoulder), right.  This official stated the anticipated recommendation of a medical board: "Unfit for enlistment; FIT for retention."  The applicant should be separated from the service.

5.  On 6 February 1990, he was discharged from active duty under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), paragraph 5-11, by reason of failure to meet procurement medical fitness standards – no disability.  His service was uncharacterized.  He completed 1 month and 3 days of net active service with no time lost.  He was also discharged from the USAR on the same date.

6.  Army Regulation 635-200, in effect at the time, provided the basic authority for the separation of enlisted personnel:

	a.  Paragraph 5-11 specifically provided that Soldiers who were 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 would 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 (Standard of Medical Fitness), chapter 3. 


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

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, established the Army Physical Disability Evaluation System (PDES).  It set forth policies, responsibilities, and procedures that apply in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  If a Soldier was found unfit because of physical disability, the regulation provided for disposition of the Soldier according to applicable laws and regulations.  Soldiers were referred into the PDES system when they no longer met medical retention standards in accordance with Army Regulation 40-501, chapter 3.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention was carefully considered.  The evidence of record shows he entered IADT on 4 January 1990 and he was diagnosed with a condition which prevented him from satisfactorily completing IADT within about 3 weeks.  The Chief, Department of Surgery, diagnosed the applicant with Impingement Syndrome (swimmer’s shoulder), right.  This official stated the anticipated recommendation of a medical board: "Unfit for enlistment; FIT for retention."  The applicant should be separated from the service.

2.  On 2 February 1990, the applicant was discharged with uncharacterized service.  Since his medical condition was not medically unfitting for retention in accordance with Army Regulation 40-501, there was no basis for a medical retirement or separation.

3.  An uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service.  It merely means the Soldier has not been in the Army long enough for his/her character of service to be rated as honorable or otherwise.  As a result, there is no basis for granting his request for an honorable discharge.

4.  The disposition of Soldiers who are found not to meet the Army's procurement medical fitness standards is through administrative separation and not through the Army's PDES.  As such, he was properly and equitably discharged in accordance with the regulations in effect at the time.  No evidence of arbitrary or capricious actions by the command was found.  It appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  He provided insufficient evidence and there is no evidence of record to support his contention that he should have received a medical discharge.

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)                                         AR20120022061



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ABCMR Record of Proceedings (cont)                                         AR20120022061



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