IN THE CASE OF:	  

		BOARD DATE:  20 February 2014

		DOCKET NUMBER:  AR20130011279 


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 he was injured while serving on active duty and is currently rated by the Department of Veterans Affairs (VA) for a 20-percent service-connected disability.  He further states this injustice is preventing him from receiving benefits from the VA.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a letter from the VA.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 28 March 2007.

2.  On 17 August 2007, a medical evaluation board (MEB) diagnosed the applicant with a medical condition that made him unfit to perform his military duties and referred him to a physical evaluation board (PEB).

3.  On 5 September 2007, a PEB determined the applicant was physically unfit to perform his military duties due to a condition (posterior thoracic pain and right knee retropatellar pain) that occurred in the line of duty and was not due to his own misconduct.  The PEB recommended his separation with severance pay.

4.  On 6 September 2007, having been informed of the findings and recommendations of the PEB, the applicant concurred with the PEB's findings and recommendations and waived a formal hearing of his case.

5.  On 21 September 2007, he was discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), by reason of disability with severance pay.  He completed 5 months and 24 days of creditable active service which was uncharacterized.

6.  On 8 April 2011, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

7.  The applicant submitted a copy of a letter from the VA, dated 12 April 2010, that shows he was awarded service-connected disability compensation evaluated at 20 percent.

8.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  It states an entry-level status applies to enlisted members of the Regular Army who completed no more than 180 days of active duty on the current enlistment by the date of separation and have demonstrated that they are not qualified for retention for one or more of several reasons, among them failing to meet medical retention standards.

9.  Chapter 3 of Army Regulation 635-200 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 conditions 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.  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.

10.  Army Regulation 635-40 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

DISCUSSION AND CONCLUSIONS:

1.  The Army Board for Correction of Military Records does not grant requests for the correction of records solely for the purpose of making an applicant eligible for veterans' or other benefits.  Every case is individually decided based upon its merits when an applicant requests a correction to his military records.

2.  The evidence of record shows that while in training, the applicant sustained an injury that warranted his entry into the PDES.  He was considered by an MEB that referred him to a PEB.  The PEB determined he did not meet retention standards and recommended his discharge with entitlement to severance pay.  He concurred and he was medically discharged.

3.  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 is approved by the Secretary of the Army.

4.  There is no evidence showing unusual circumstances of personal conduct and performance of military duty that would have warranted the Secretary of the Army's approval of an honorable characterization of service.

5.  The uncharacterized, entry-level separation is assigned regardless of the reason for separation.  This uncharacterized discharge is neither positive nor negative; it is not derogatory.  It simply means the Soldier did not serve on active duty long enough to qualify for a specified characterization of service.

6.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his military service at that time.  In view of the foregoing, there is no 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 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)                                         AR20130011279



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ABCMR Record of Proceedings (cont)                                         AR20130011279



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