BOARD DATE:	26 November 2013  

		DOCKET NUMBER:  AR20130005998 


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:

The applicant defers her request and statements to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant’s previous request for a change of her uncharacterized discharge to an honorable discharge or a medical discharge.

2.  Counsel states the Department of Veterans Affairs (VA) has rated the applicant 30 percent disabled due to her medical conditions which were the reason for her discharge.  It is their understanding that if a Soldier is rated 30 percent due to disabilities while on active duty which hinders their ability to do the training or their job they should be given a medical discharge.  It is not the applicant’s fault the Army did not rate her disabilities to see if she was eligible for a medical discharge.  The applicant should be considered for a medical discharge based on her 30 percent disability rating by the VA.

3.  Counsel provides a copy of the applicant's August 2012 Army Board for Correction of Military Records (ABCMR) – Record of Proceedings.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120004881, on 30 August 2012.
2.  The applicant and counsel contend her discharge should be changed to an honorable or a medical discharged based on her 30 percent service-connected VA rating.  This is considered a new argument and will be considered by the Board.

3.  The applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) on 7 December 1992.  She was discharged from the DEP and enlisted in the Regular Army, in pay grade E-2, on 3 February 1993, for 4 years.  She did not complete advanced individual training and was not awarded a military occupational specialty.

4.  On 10 and 11 March 1993, she was counseled for her unsatisfactory performance, missing and refusing training, and being administratively discharged if her performance and conduct did not improve.

5.  On 11 March 1993, the applicant underwent a mental status evaluation.  Her behavior was found to be normal.  She was fully alert and fully oriented.  Her mood or affect was found to be unremarkable and her thinking process was clear.  Her thought content was normal and her memory was good.  The examining psychiatrist stated:

   a.  The applicant stated she had injured her lower back in training and was hospitalized from 4 to 8 March 1993.  On her return, she refused to be a new start to another company.  She also admitted to missing home a lot.  She joined the Army because she had a lot of friends on an Army-Air Force base and thought being in the military would be fun.

   b.  The applicant appears to be a young, immature individual who appeared to be having an occupational problem.  She also appeared to have a desire to return home and lacked interest in becoming a Soldier.  He found the applicant was mentally responsible and met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  He cleared the applicant for administrative action deemed appropriate by her command.  

6.  On 16 March 1993, the applicant’s company commander notified the applicant of proposed action to separate her under the provisions of Army Regulation    635-200 (Personnel Separations – Enlisted Separation), chapter 11, for motivational reasons.  He states the reasons were the applicant’s unwillingness to adjust to military life, and her refusal to train and be recycled into another company.  He further stated the applicant lacked the motivation, self-discipline, aptitude, and desire to complete basic training and further training was not justified.  He advised the applicant of her rights and that her service could be characterized as an entry-level separation (uncharacterized).
7.  On 16 March 1993, after consulting with counsel, the applicant acknowledged receipt of the proposed separation.  She also acknowledged she could receive an uncharacterized discharge.  She waived her rights and elected not to submit a statement in her own behalf.

8.  On 19 March 1993, the separation authority approved the applicant’s discharge and the issuance of an uncharacterized discharge.   

9.  She was discharged accordingly in pay grade E-2 on 24 March 1993, under the provisions of Army Regulation 635-200, paragraph 11-3a, for Entry-Level Status Performance and Conduct.  She was credited with completing 1 month and 22 days of active service with no time lost.

10.  Her record is void of any indication of any medical condition which would have prevented her from satisfactorily completing her period of service.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Paragraph 11-3a – the separation of personnel who had completed no more than 180 days (6 months) of creditable continuous active duty and who had demonstrated they were not qualified for retention because of unsatisfactory performance or conduct (or both).  The policy applied to individuals who had demonstrated they were not qualified for retention because they could not adapt socially or emotionally to military life, or because they lacked the aptitude, ability, motivation, or self-discipline for military service, or that they had demonstrated characteristics not compatible with satisfactory continued service.  Service would be uncharacterized for separation under the provisions of this chapter.

   b.  Paragraph 3-7a – an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, established the Army Physical Disability Evaluation System and set forth policies, responsibilities, and procedures that applied in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  



DISCUSSION AND CONCLUSIONS:

1.   The applicant enlisted in the RA on 3 February 1993.  It appears she hurt her back during basic training and was hospitalized for a few days.  However, she then refused to start training over in a new company.  Her company commander initiated action to separate the applicant for her unwillingness to adjust to military life and her refusal to train.  

2.  She was properly discharged in accordance with pertinent regulations with due process.  She acknowledged the proposed separation and that she could receive an entry-level status separation with her service described as uncharacterized.

3.  The uncharacterized service was and still is appropriate and there is no basis to change it.  An uncharacterized discharge 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.  As a result, there is no basis for granting her request for an honorable discharge.

4.  There is also an absence of evidence to support her entitlement to a medical discharge.  There is no evidence she was found to be unfit by reason of physical disability incurred or aggravated during her period of active duty.  She was found to have met the retention standards of Army Regulation 40-501, chapter 3, and cleared for any administrative action by her command.  Because she refused to start training over in a new company she forfeited any opportunity she may have had to show whether or not she was unable to perform her duties due to her injury.  The VA grants ratings due to service-connected injuries; the Army must find the member cannot perform their duties prior to processing for a medical separation.  Therefore, she is not entitled to 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 to amend the decision of the ABCMR set forth in Docket Number AR20120004881, dated 30 August 2012.



      _______ _   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)                                         AR20130005998





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ABCMR Record of Proceedings (cont)                                         AR20130005998



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