IN THE CASE OF:	  

		BOARD DATE:	  11 March 2014

		DOCKET NUMBER:  AR20130012196 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show in:

* item 24 (Character of Service), honorable vice uncharacterized
* item 28 (Narrative Reason for Separation), as medical disability vice failed medical/physical procurement standards

2.  The applicant states:

	a.  He believes he should have been given an honorable discharge rather than uncharacterized based on the fact that although his active duty time was short, he served honorably during that time.  He was discharged for medical reasons that happened while he was serving on active duty and he receives Department of Veterans Affairs (VA) service-connected disability for those reasons.

	b.  He also believes the narrative reason for his discharge should read medical disability.  The current narrative reason implies he was discharged for pre-existing conditions which was not the case.  When he was discharged, he was not given the reason for this type of discharge and did not know it would prevent him from obtaining certain VA benefits until he applied and was denied some benefits simply because of the character of his discharge.

3.  The applicant provides his DD Form 214 and a VA Rating Decision.

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 completed a DD Form 2807 (Report of Medical History) on 11 January 2007 in conjunction with his enlistment in the Regular Army wherein he indicated he was in good health and the only medical treatment he had received was for chicken pox when he was a child and stitches for a laceration to his cheek when he was a teenager.

3.  On 11 January 2007, he underwent a medical examination.  The examining physician completed a DD Form 2808 (Report of Medical Examination) on that date wherein he indicated the applicant was qualified for military service.  However, he annotated item 74b (Physical Profile) of this form to show the applicant was assigned a rating of 3 in the hearing and ears (H) factor (or auditory acuity and disease/defects of the ear) of the Army physical profile serial system.  The examining physician referred the applicant for an audiology consult.

4.  On 5 February 2007, item 78 (Significant or Disqualifying Defects) of this form indicated the applicant had a hearing loss and that a waiver to enlist was received on that date.

5.  The applicant enlisted in the Regular Army on 21 June 2007.  He was assigned to the 30th Adjutant General Battalion, Fort Benning, GA, for further assignment to a basic combat training (BCT) unit.

6.  His Enlisted Record Brief (ERB), dated 9 October 2007, shows he was flagged on 6 August 2007 pending administrative separation.  His ERB does not show he was ever assigned to a BCT unit.  His last unit of assignment is shown as Company F, Reception Holding Unit.

7.  His ERB also shows he was assigned a physical profile rating of 2 in the H factor of the Army physical profile serial system.

8.  The specific facts and circumstances surrounding his discharge processing are not available for review with this case.  However, his records contain a duly-constituted DD Form 214 showing he was discharged on 23 October 2007 after completing 4 months and 3 days (or 123 days) of creditable active service.

9.  His DD Form 214 also shows the following entries:

* item 24 – uncharacterized
* item 25 (Separation Authority) – Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-11
* item 26 (Separation Code) – JFW
* item 28 – failed medical/physical/procurement standards

10.  The applicant provided a VA Rating Decision, dated 25 March 2013, wherein he was granted service-connected disability for:

* mood disorder (claimed as bipolar disorder and sleep problems) in the amount of 30 percent effective 22 October 2012
* tinnitus in the amount of 10 percent effective 22 October 2012

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-11 specifically provides that:

	a.  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 entrance on active duty, active duty for training, or initial entry training will be separated.

	b.  A medical proceeding, regardless of the date completed, must establish that a medical condition was identified by the appropriate medical authority within 6 months of the Soldier's initial entrance on active duty, that the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at that time, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501 (Standards of Medical Fitness).

12.  Army Regulation 635-200, chapter 3, states a separation will be described as entry level with uncharacterized service if the Soldier has less than 180 days of continuous active duty service at the time separation action is initiated.

13.  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 JFW is the correct code for Soldiers separating under the provisions of Army Regulation 635-200, paragraph 5-11, and failed medical/physical/procurement standards is the corresponding entry for the narrative reason for separation.

14.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The VA may rate any service-connected impairment, including those that are detected after discharge, to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records are void of the specific facts and circumstances surrounding his discharge.  However, in the absence of evidence to the contrary, it is presumed that his separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights and that the type of discharge directed and the reason for his separation were appropriate.

2.  A disability decision rendered by another agency does not establish any error on the part of the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining the medical condition of a Soldier at the time of his or her discharge.  The VA may award ratings because of a service-connected disability that affects the individual's civilian employability.

3.  In the applicant's case, his records contain a DD Form 214 that shows he was discharged under the provisions of Army Regulation 635-200, paragraph 5-11, by reason of failed medical/physical/procurement standards.  This narrative reason for separation was based on his separation under the provisions of Army Regulation 635-200, paragraph 5-11.  This is the only valid narrative reason for separation permitted under that paragraph.  His narrative reason for separation is correctly shown on his DD Form 214.

4.  On 23 October 2007, he was discharged with uncharacterized service.  He was separated while he was in an entry-level status after completing only 123 days of active service so he correctly received uncharacterized service.

5.  Uncharacterized 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 or her character of service to be rated.

6.  In view of the foregoing, there is an insufficient evidentiary basis upon which to grant the 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)                                         AR20130012196



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ABCMR Record of Proceedings (cont)                                         AR20130012196



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