IN THE CASE OF:	  

		BOARD DATE:	    31 October 2013

		DOCKET NUMBER:  AR20130004558 


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 her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show her characterization of service as "under honorable conditions (general)" vice "uncharacterized."

2.  The applicant states she was discharged due to a disability aggravated by military service.

3.  The applicant provides a self-authored statement, dated 26 February 2013, and her DD Form 214.

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 21 April 1995.  Her record contains a Standard Form (SF) 93 (Report of Medical History) completed at the time of enlistment wherein she indicated she suffered from swollen and painful joints and a locked knee.  The examining physician indicated she had suffered from bilateral knee injuries 4 years prior to enlistment and knee pain in January 1995 which caused her knees to give way.

3.  She entered active duty on 16 August 1995.

4.  Her record contains an SF 502 (Medical Record - Narrative Summary (NARSUM) (Clinical Résumé)), dated 24 August 1995, which included a history of her condition that existed prior to service (EPTS).  It revealed she had recurrent knee pain after suffering from a sports injury to her right knee playing football in 1990 and her left knee playing basketball in 1991.  Sometimes her knees gave out, often when walking, the last incident occurred on 23 August 1995.  The examining physician diagnosed her with recurrent knee pain.  His recommendations indicated that she met the criteria for separation in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 5-2 (Separation for Non-Service Aggravated, EPTS Conditions upon Soldier’s Waiver of Physical Evaluation Board (PEB)).  The examining physician further stated that she had been informed of her right to appeal any Medical Evaluation Board (MEB) findings to a PEB and legal counsel was made available to the applicant. 

5.  Her record contains MEB proceedings, dated 24 August 1995, which show the MEB considered her for recurrent knee pain, determined her knee pain was an EPTS condition not incurred while entitled to base pay, and was not permanently aggravated by military service.  The MEB recommended she be separated from military service in accordance with Army Regulation 635-40, chapter 5.  She agreed with the MEB's recommendations and findings.

6.  Her record contains a memorandum, dated 28 August 1995, wherein she requested discharge for her physical disability based on the MEB's findings.  She acknowledged that the MEB considered her unqualified for retention because of an ETPS physical disability.  The MEB found her disability neither incident to nor aggravated by her military service.  She stated that she had been fully informed that she was entitled to a PEB; however, she elected not to exercise this right.  She further acknowledged she understood that if her request for discharge was approved she would be separated by reason of an EPTS disability.



7.  On 31 August 1995, the separation authority approved her request for separation.  Accordingly, she was discharged on 11 September 1995.  Her 
DD Form 214 shows she was discharged by reason of disability, EPTS - Medical Board and received an uncharacterized characterization of service.  She completed 26 days of net active service and she had 3 months and 25 days of prior inactive service.

8.  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 that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service.  Examples are congenital malformations and hereditary conditions or similar conditions in which medical authorities are in such consistent and universal agreement as to their cause and time of origin that no additional confirmation is needed to support the conclusion that they existed prior to military service.  Likewise, manifestation of symptoms of chronic condition from date of entry on active military service (or so close to that date of entry that the condition could not have started in so short a period) will be accepted as proof that the disease existed prior to entrance into active military service.  

9.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) provides for the separation of enlisted personnel.  It states in: 

	a.  Paragraph 3-7a, 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, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

	c.  Paragraph 3-9, an uncharacterized separation is an entry-level separation. A separation will be described as an entry-level separation if processing is initiated while a member is in entry-level status, except when characterization under other than honorable condition is authorized under the reason for separation and is warranted by the circumstances of the case or when The Secretary of the Army, on a case-by-case basis, determines that characterization of service as Honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. 
 
	d.  Paragraph 4-2h, in effect at the time, states USAR Soldiers who successfully complete a period of initial active duty for training (IADT) to which ordered, and in whose cases the special conditions set forth in paragraph 16-9 do not apply, will out-process per Army Regulation 612-201 (Initial Entry/Prior Service Trainee Support).  The service of Soldiers specified in this paragraph who are in entry level status will be uncharacterized, even though they have completed their ADT successfully.

	e.  For USAR Soldiers, entry level status begins upon enlistment in the USAR.  It terminates for Soldiers ordered to IADT for one continuous period-180 days after beginning training or for Soldiers ordered to IADT for the split or alternate training option-90 days after beginning Phase II of advanced individual training. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant, as a result of an MEB and her own request, was discharged for an EPTS condition that was not caused or aggravated by military service.  Additionally, she acknowledged in writing that she understood her condition was an EPTS condition that was not caused or aggravated by military service.

2.  The evidence of record shows she was a USAR Soldier and had not yet completed her IADT; therefore, she was still in an entry level status at the time of her discharge.  

3.  An uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service.  It merely means that the Soldier has not been in the Army long enough for his or her character of service to be rated as general, honorable, or otherwise.

4.  Based on the foregoing, there is insufficient evidence to justify granting relief in this case.






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)                                         AR20130004558



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ABCMR Record of Proceedings (cont)                                         AR20130004558



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