IN THE CASE OF:	  

		BOARD DATE:  20 June 2013

		DOCKET NUMBER:  AR20120022294 


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 uncharacterized discharge be changed to an honorable or medical discharge.

2.  The applicant states the following:

	a.  he broke his ankle during basic training; however, it was not discovered until it was too late to do anything about it;

   b.  an administrative error occurred when the Army discharged him because of his broken ankle; 

   c.  a DD Form 215 (Correction to the DD Form 214 (Certificate of Release or Discharge from Active Duty)) was issued in 1990 but it did not address his uncharacterized discharge.

3.  The applicant provides the following:

* DD Form 214 
* DD Form 215

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's record shows he enlisted in the Regular Army on 27 September 1982.  He completed basic combat training at Fort Jackson, South Carolina and was reassigned to Fort Benning, Georgia, for advanced individual training.

3.  His record shows he never advanced above his entry grade of private/E-1 while serving on active duty.  It also shows he never obtained a military occupational specialty.

4.  His DA Form 2-1 (Personnel Qualification Record) shows he earned the following qualification badges:

* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) 
* Marksman Marksmanship Qualification Badge with Hand Grenade Bar

5.  On 10 January 1983, the unit commander informed the applicant of his intent to process him for separation under the provisions of chapter 11, Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), under the Trainee Discharge Program (TDP).  The unit commander cited the applicant's failure to show social and behavioral characteristics compatible with continued military service as the basis for the action.  The applicant acknowledged receipt of the separation notification and his understanding that if approved, he would receive an uncharacterized entry level separation (ELS).

6.  On 11 January 1983, the separation authority approved the applicant's discharge while in an ELS status.  The separation authority directed that the applicant be separated under the provisions of chapter 11, Army Regulation 635-200.

7.  On 12 January 1983, the applicant was discharged accordingly, having completed 3 months and 16 days of active military service.  The DD Form 214 shows he was discharged by reason of "entry level status performance and conduct."


8.  On 9 March 1990, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board (ADRB) concluded the applicant’s discharge was proper and equitable, and voted to deny his request for an upgrade.  However the ADRB determined the reason for his discharge should be corrected to show "Entry Level Status."

9.  On 18 January 1990, a DD Form 215 was prepared to correct the applicant's narrative reason for separation to show "ELS" instead of "entry level status performance and conduct."

10.  The available record is void of any medical treatment records or documents that indicate the applicant was ever treated for a disabling medical or mental condition during his period of service that would have warranted separation processing through medical channels.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-9 contains guidance on ELS separations.  It states that a separation will be described as entry level with uncharacterized service if the Soldier has less than 180 days of continuous active duty service at the time separation action is initiated.

12.  Chapter 11 of Army Regulation 635-200 provides for the separation of personnel due to unsatisfactory performance, conduct, or both, while in an ELS status.  An uncharacterized service description is normally granted to Soldiers separating under this chapter.  A general discharge is not authorized under ELS conditions and an honorable discharge is rarely ever granted.  An honorable discharge may be given only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Chapter 3 provides guidance on presumptions of fitness.  It states that the mere presence of impairment did 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 applicant contends his uncharacterized discharge should be changed to an honorable or medical discharge.

2.  His DD Form 214 shows he completed 3 months and 16 days of active military service at the time of his separation.  As a result, the separation action was initiated while he was in an ELS status.  Further, the record shows the applicant's service was described as uncharacterized as a result of his being discharged while in an ELS status.  A Soldier is in an ELS status, or probationary period, for the first 180 days of continuous active duty.  

3.  The issuance of a general discharge to members in an ELS status is not authorized and an honorable discharge may be granted only in cases that are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.  Given no such unusual circumstances are present in the applicant's record; there is an insufficient evidentiary basis to support changing the characterization of his service to honorable.  

4.  Finally, there is no evidence available that shows the applicant suffered from a disqualifying mental or physical condition during his period of military service, warranting his separation processing through medical channels.  Accordingly, there is no basis upon which to grant his separation through the PDES.

5.  The record shows the applicant's separation processing was accomplished accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

6.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20120022294





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ABCMR Record of Proceedings (cont)                                         AR20120022294



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