IN THE CASE OF:	  

		BOARD DATE:	  12 November 2013

		DOCKET NUMBER:  AR20130003390 


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 change of his characterization of service from "uncharacterized" to "medical."

2.  The applicant states he incurred a service-connected injury during initial entry training.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 2246 (Applicant Medical Prescreening Form)
* DD Form 2005 (Privacy Act Statement – Health Care Records)
* Standard Form (SF) 513 (Medical Record – Consultation Sheet)
* Two SF's 600 (Health Record – Chronological Record of Medical Care)
* SF 553 (Microbiology 1) [specimen taken form]
* DD Form 771 (Eyewear Prescription)
* Eight DA Forms 5181-R (Screening Note of Acute Medical Care)
* SF 558 (Emergency Care and Treatment)
* SF 545 (Laboratory Report Display)
* Two DA Forms 3349 (Physical Profile)






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.  On 4 October 1991, he enlisted in the Regular Army (RA).  He did not complete basic training.

3.  The applicant provides a DD Form 2246, dated 26 June 1991, that shows he indicated he had no previous back trouble.

4.  He provides DA Forms 5181-R that show on:

* 24 October 1991, he complained of hip pain after stepping in a ditch while running and was diagnosed with "probable strain"
* 27 October 1991, he complained of lower back, hip, and left knee pain
* 31 October 1991, he complained of hip pain
* 1 November 1991, he complained of hip and lower back pain
* 6 November 1991, he complained of continued back and hip pain

5.  He provides a DA Form 3349, dated 13 November 1991, that shows he was assigned a permanent profile for chronic neck and low back pain, existing prior to service.

6.  His record contains a DA Form 4707 (Entrance Physical Standards Board Proceedings), dated 13 November 1991, that shows after careful consideration of medical records, laboratory findings, and medical examination, the board found the applicant was medically unfit for enlistment in accordance with medical fitness standards and in the opinion of the evaluating physicians the conditions existed prior to service.

	a.  The applicant admitted to having low back and neck pain of 3 years duration.  The pain dated back to an accident in 1988 wherein he was a passenger in an automobile that was struck from behind by another automobile.  He indicated at that time he had the onset of neck and back pain and underwent subsequent chiropractic care.  He continued to have neck and back pain 
throughout high school and later as a bricklayer's helper.  He was diagnosed with mechanical low back pain and chronic cervical spine pain that existed prior to service.  His condition was covered in Army Regulation 40-501 (Standards of Medical Fitness), paragraphs 2-37b and 2-39c.  It was the opinion of the Orthopedic Service that his injuries were sustained and existed prior to entry into the service and had not been service-aggravated.  It was unlikely he would be able to complete his initial entry training due to chronic pain and the inability to perform certain physical activities.  It was recommended the applicant be separated from the service for that existing prior to service condition.

	b.  This form further shows he was informed of the medical findings, he concurred with the proceedings, and he requested to be discharged from the U.S. Army without delay.

7.  On 4 December 1991, he was discharged from active duty under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-11, by reason of "did not meet procurement medical fitness standards - no disability" with a character of service as "uncharacterized."  He completed 2 months and 1 days of total active service.

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

	a.  Paragraph 3-9 provides that a separation will be described as entry level with service uncharacterized if processing is initiated while a Soldier is in an entry-level status.  For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty.

	b.  Paragraph 5-11 states 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 will be separated.  Such conditions must be discovered within 6 months of the Soldier's initial entrance on active duty.  Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by an appropriate military medical authority within 6 months of the Soldier's initial entrance on active duty for the Regular Army that:

		(1)  would have permanently or temporarily disqualified him or her for entry into the military service or entry on active duty had it been detected at that time and

		(2)  does not disqualify him or her for retention in the military service per Army Regulation 40-501, chapter 3.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to change his character of service has been carefully considered.  However, there is insufficient evidence to support his request.

2.  His record shows he complained of hip and knee pain caused by stepping in a ditch that was diagnosed as a probable strain.  However, he was not discharged due to these medical conditions.  He was discharged for preexisting medical conditions related to his neck and lower back.  As such, there is no evidence of error in his reason for discharge.

3.  Regulatory policy provides that a separation will be described as entry level with service uncharacterized if processing is initiated while a Soldier is in an entry-level status.  The applicant was in the first 180 days of continuous active duty service when he was discharged under the provisions of Army Regulation 635-200, paragraph 5-11, for failing to meet procurement medical fitness standards – no disability.

4.  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 or her character of service to be rated as honorable or otherwise.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20130003390



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130003390



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1