IN THE CASE OF:	  

		BOARD DATE:  14 November 2013

		DOCKET NUMBER:  AR20130004994 


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:

* an upgrade of his uncharacterized discharge to honorable
* removal of "DISABILITY, EXISTED PRIOR TO SERVICE – MEDICAL BOARD" as the narrative reason for his separation as shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty)

2.  The applicant states:

* he was injured while moving a bunk on 19 May 1996 – he felt a pop in his back followed by severe pain in his back/legs and he reported the injury
* he was later unable to keep up running with his platoon due to this pain – prior to this injury, he was athletic
* he was placed on desk duty at night due to not training with his platoon and he was not allowed to speak with a military attorney
* after a week of desk duty, he was told to sign his discharge papers which stated his injury existed prior to service (EPTS)
* due to his lack of sleep and tremendous pain, his judgment was clouded and he signed the statement indicating his injury was EPTS
* he recently pulled all his records and noticed these records were missing and one of the statements was untrue
* he was sent to sick call five times, but only one record was found
* the statement states he has an EPTS condition in that he has a history of 2 years of a back injury secondary to lifting – this is a false statement
* one report states he was admitted to the hospital on 7 June 1996 which is not true – he was discharged on that day

3.  The applicant provides:

* letter from his former stepfather (an attorney)
* letter from his mother
* letter from the National Personnel Records Center
* DA Form 3947 (Medical Evaluation Board Proceedings)
* separation packet
* 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's records show he underwent an enlistment physical at the Fort Jackson Military Entrance Processing Station, SC, for enlistment in the Regular Army.  The military physician noted he had a left elbow fracture at age 10 and his pins were removed in July 1987.

3.  He enlisted in the Regular Army on 7 May 1996.  He was assigned to Fort Jackson, SC, for basic combat and/or advanced individual training.

4.  His records contain a Standard Form 502 (Medical Record – Narrative Summary), dated 28 May 1996, which shows:

	a.  He had a history of approximately 2 years of back injury secondary to lifting and was followed by a physician.  He was given medication and wore a brace for 4 months.  He had some resolution of pain.  His pain was increasing on a daily basis.  He failed the Army Physical Fitness Test and he was unable to complete training.

	b.  His diagnosis was that of chronic back pain, unresolved.  He met the criteria for separation in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 5-2.  He was informed of his right to appeal these proceedings to a physical evaluation board (PEB) if he desired.  He was also advised that legal counsel was available to him.

5.  On 28 May 1996, a medical evaluation board (MEB) convened and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable condition of unresolved chronic back pain, EPTS, that was not aggravated by service.

6.  The DA Form 3947 (MEB Proceedings) indicates he was counseled and agreed with the MEB's findings and recommendation.  He also acknowledged that legal counsel was available to him.  Subsequent to this counseling, the MEB proceedings were approved.

7.  On 28 May 1996, the applicant's company commander was notified by memorandum that the applicant was found medically unfit for retention in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, due to a condition that was EPTS.

8.  On 28 May 1996 after counseling by the commander, the applicant requested discharge from the Army and waiver of a PEB.  He acknowledged and/or indicated:

* he is requesting a discharge for physical disability based upon the findings and recommendations of the MEB
* the MEB considers him unqualified for retention due to his physical disability that was found to have EPTS and was neither incident to nor aggravated by service
* he had been fully informed and understood he was entitled to the same consideration and processing as any other Soldier of the Army separated for physical disability
* he understood he was entitled to consideration by a PEB but he elected to waive that right
* if his application for discharge was approved, he would be separated by reason of an EPTS condition 
* he would receive a discharge in keeping with the character of his service as decided by the authority designated to effect his separation

9.  On 29 and 30 May 1996, his immediate and intermediate commanders recommended approval of his discharge.

10.  On 30 May 1996, the discharge authority approved the applicant's separation from the Army.  Accordingly, the applicant was discharged on 7 June 1996 under the provisions of Army Regulation 635-40 by reason of disability, EPTS, medical board, with uncharacterized service.  He completed 1 month and 1 day of active service.

11.  His DD Form 214 shows in:

* item 24 (Character of Service) – UNCHARACTERIZED
* item 26 (Separation Code) – KFN
* item 28 (Narrative Reason for Separation) – DISABILITY, EXISTED PRIOR TO SERVICE – MEDICAL BOARD

12.  He submits:

	a.  a letter from an attorney, dated 3 March 2013, who states he was the applicant's stepfather from 1983 to 2007.  He spent many hours with him and they did a substantial amount of work together around the house.  He also supervised him with sports, including the swim team and tennis activities.  He never knew the applicant to use or need a back brace; and

	b.  a letter from his mother, dated 1 March 2013, who states she was his caretaker from birth to his entry on active duty.  Prior to his entry on active duty, he never saw a doctor about any condition relating to his back and he never wore a back brace for any length of time.

13.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System 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.  It provides for MEBs, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code "KFN" is the correct code for Soldiers separating under the provisions of Army Regulation 635-40, chapter 5, for a physical disability existing prior to entry on active duty.

15.  Army Regulation 635-200 (Personnel Separations) describes the different types of characterization of service.  It states 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 an 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.  Entry-level status is defined as the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break in service of more than 92 days of active military service.

16.  Army Regulation 635-200, paragraph 3-7a, provides that 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.

DISCUSSION AND CONCLUSIONS:

1.  During the first few weeks of training, he complained of back pain.  Upon examination, medical authorities established he suffered from a disqualifying medical condition that was EPTS.

	a.  He had a history of approximately 2 years of a back injury secondary to lifting.  He was given medication and wore a brace for 4 months.  He signed a statement to this effect.  He had some resolution of pain.  His pain was increasing on a daily basis.  He failed the Army Physical Fitness Test and he was unable to complete training.  His diagnosis was that of chronic back pain, unresolved.  He met the criteria for separation and he was informed of his right to appeal these proceedings to a PEB if he desired.  He was also advised that legal counsel was available to him.

	b.  Consequently, his records were evaluated by an MEB.  The MEB convened and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable conditions of chronic back pain, unresolved, EPTS, that was not aggravated by service.
2.  Since he failed medical procurement standards, separation action was initiated against him.  He was advised of his rights and presented with options.  He was also afforded the opportunity for legal counsel.  He elected immediate discharge without any delay.  All requirements of law and regulation were met and the rights of the applicant appear to have been fully protected throughout the separation process.

3.  He contends this Board should find the findings by medical authorities some 20 years ago to be inaccurate.  The Army has an interest in maintaining the integrity of its records.  The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  In the absence of a showing of material error or injustice, there is no reason to recommend that those records be changed.

4.  Therefore, absent convincing independent and verifiable evidence to the contrary, it is presumed that the applicant's military service records, including the medical records, narrative summary, and MEB proceedings were correct at the time and there is insufficient evidence to grant him relief in this case

5.  During the first 180 days of continuous active military service, a member's service is under review.  When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant a discharge under other than honorable conditions.  An honorable characterization may be given only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and the characterization must be approved by the Secretary of the Army.

6.  An uncharacterized discharge is neither positive nor negative; it is not derogatory.  An uncharacterized character of service is not meant to be a negative reflection of a Soldier's military service.  It merely means the Soldier has not served on active duty long enough for his/her character of service to be rated.

7.  Because this condition was identified within his first 180 days of active duty service, his discharge was appropriately uncharacterized.  Again, all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.







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 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)                                         AR20130004994



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ABCMR Record of Proceedings (cont)                                         AR20130004994



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