IN THE CASE OF:	  

		BOARD DATE:	  11 March 2014

		DOCKET NUMBER:  AR20130012578 


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 her 1990 uncharacterized discharge be changed to an honorable discharge. 

2.  The applicant states she was told after five years her discharge would be changed to an honorable discharge and she has yet to receive her honorable discharge.

3.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 Regular Army on 19 February 1991. 
3.  A DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings), dated 11 June 1991, shows she underwent an initial entry training examination.  She was diagnosed with chondromalacia patella (damage to the cartilage at the back of the kneecap), bilateral, left greater than right; not service aggravated.  The EPSBD stated the applicant was beginning to experience knee pains similar to those that precipitated her surgery in 1986.  Although she was relatively asymptomatic up to the point of enlistment, she did note that she was not active up to the point of enlistment.  The likelihood that she would be able to successfully complete her basic training, advanced individual training, and any commitment to the military was poor.  The EPSBD recommended that though she met retention criteria it was felt to be in the best interest of the applicant (medically) and the U.S. Government to separate her from active duty for a condition that existed prior to service.  The EPSBD was approved on 12 June 1991.

4.  On 13 June 1991, she acknowledged she understood she had the right to consult with counsel, request to be discharged, or to request retention on active duty and if retained, involuntarily reclassified into another military occupational specialty based on her medical condition.  She concurred with the findings and recommendations of the EPSBD and requested to be retained on active duty.

5.  On 14 June 1991, the applicant's company commander recommended the applicant be discharged.

6.  On 18 June 1991, the separation authority approved the applicant's discharge and directed the issuance of an entry-level separation (uncharacterized).

7.  Accordingly, she was discharged on 21 June 1991 after completing 4 months and 2 days of net active service.  Her DD Form 214 shows in:

* Item 24 (Characterization of Service) – Uncharacterized
* Item 25 (Separation Authority) - Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-11
* Item 28 (Narrative Reason for Separation) – Did Not Meet Procurement Medical fitness Standards-No Disability

8.  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 5-11 - 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 entry on active duty or active duty for training for initial entry training, could be separated.  Such conditions must be discovered during the first 6 months of active duty.  Such findings would result in an EPSBD.  An uncharacterized description of service was issued if in entry-level status.  An entry-level status was the first 180 days (6 months) of continuous active duty.

   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.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, established the Army Physical Disability Evaluation System (PDES).  It set forth policies, responsibilities, and procedures that apply in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  If a Soldier was found unfit because of physical disability, the regulation provided for disposition of the Soldier according to applicable laws and regulations.  Soldiers were referred into the PDES system when they no longer met medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

10.  Army Regulation 40-501, in effect at the time, governed the medical fitness standards for retention and separation.  The regulation stated in paragraph 2–11 (Miscellaneous conditions of the extremities) chronic retropatellar knee pain syndrome with or without confirmatory arthroscopic evaluation is one of the causes for rejection.
 
DISCUSSION AND CONCLUSIONS:

1.  An EPSBD diagnosed the applicant with chondromalacia patella.  The EPSBD stated the likelihood that she would be able to successfully complete her basic training, advanced individual training, and any commitment to the military was poor.  The EPSBD recommended that though she met retention criteria it was felt to be in the best interest of the applicant (medically) and the U.S. Government to separate her from active duty for a condition that existed prior to service.  

2.  She acknowledged her rights, concurred with the findings and recommendations of the EPSBD, and elected to be retained on active duty.  Her company commander recommended she be discharged and the separation authority approved her discharge.  As a result, she was discharged on 21 June 1991.  
3.  In accordance with regulatory guidelines, Soldiers who had completed less than 180 days (6 months) of continuous active duty would have their service uncharacterized.  That meant that the Soldier had not been in the Army long enough for his/her character of service to be rated as honorable or otherwise.  It was and still is not meant to be a negative reflect of a Soldier's military service.  She was discharged after completing 4 months and 2 days of net active service.  Therefore, she is not entitled to a change in the characterization of her service from uncharacterized to honorable.

4.  Additionally, the Army does not now have, nor has it ever had, a policy of automatically upgrading an individual's discharge due to the passage of time.

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)                                         AR20130012578





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ABCMR Record of Proceedings (cont)                                         AR20130012578



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