IN THE CASE OF: 

		BOARD DATE:	    15 July 2014

		DOCKET NUMBER:  AR20130020049 


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 her DD Form 214 (Certificate of Release or Discharge from Active Duty) as follows:

* show her prior service
* upgrade her uncharacterized discharge
* change the narrative reason for separation

2.  The applicant states she previously served in the U.S. Navy Reserve (USNR) and she needed immediate medical attention (surgery to her right ovary).  She needs the DD Form 214 corrected so she may continue to qualify for educational benefits.

3.  The applicant provides:

* DD Form 214
* memorandum of transmittal of USNR Discharge Certificate
* DD Form 368 (Request for Conditional Release)
* discharge orders
* Optional Form 41 (Routing and Transmittal Slip)
* photographs of a cyst
* two Department of Veterans Affairs (VA) letters


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 she enlisted in the USNR on 29 September 2000.  Her records do not show if she performed any active or inactive duty while in the USNR.  However, she provided:

	a.  an undated statement from the U.S. Navy Personnel Command indicating she had been discharged from the USNR on 23 August 2006 for the purpose of enlisting the U.S. Army Reserve (USAR) and

	b.  a DD Form 368 showing she was issued a conditional release for enlistment in the Virginia Army National Guard (VAARNG).

3.  She enlisted in the VAARNG on 24 August 2006.  She entered active duty for training (ADT) on 11 May 2007 and she was assigned to Fort Jackson, SC, for completion of training.

4.  The complete facts and circumstances surrounding her discharge are not available for review with this case.  However, her records contain a duly-constituted DD Form 214 that shows she was discharged on 17 October 2007 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-11, by reason of failing to meet medical procurement standards.

5.  Her DD Form 214 shows she completed 5 months and 7 days (157 days) of creditable active service.  This form also shows in:

* item 24 – Uncharacterized
* item 26 (Separation Code) – JFW

6.  On 8 June 2009, the Army Discharge Review Board (ADRB) notified her that after a review of her application, military records, and other available evidence, the ADRB determined she was properly and equitably discharged.  Accordingly, her request for a change of character and/or reason for separation was denied.

7.  She provided:

	a.  an Optional Form 41, dated 24 September 2007, in relation to removal of a cyst and photographs of what she describes as a cyst; and

	b.  letters from the VA, dated 29 and 31 January 2013, in relation to Post-9/11 GI Bill educational benefits.

8.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 5-11 specifically provides that Soldiers who are 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, active duty for training, or initial entry training will be separated.  A medical proceeding conducted by an Entrance Physical Standards Board, regardless of the date completed, must establish that a medical condition was identified by 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 the time of enlistment, 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), chapter 3.  The characterization of service for Soldiers separated under this provision will normally be honorable, but will be uncharacterized (entry-level status) if the Soldier has not completed more than 180 days of creditable continuous active duty service prior to initiation of the separation action.

9.  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.

DISCUSSION AND CONCLUSIONS:

1.  With respect to her prior service, she enlisted in the USNR on 29 September 2000 and she was discharged from the USNR on 23 August 2006, a period of 5 years, 10 months, and 25 days.  It is unclear if and when she completed any active service in the USNR.  It is equally unclear what portion of this service was active and what portion was inactive.  As a result, in the absence of a breakout of her USNR active and inactive service, there is insufficient evidence to correct her Army DD Form 214 to show her prior Navy service.

2.  With respect to her character of service and narrative reason for separation:

	a.  The complete facts and circumstances surrounding her discharge are not available for review with this case.  However, her DD Form 214 shows she entered active duty on 11 May 2007 and she was discharged on 17 October 2007 by reason of failing medical procurement standards.

	b.  It appears while in training, medical authorities identified a preexisting condition that failed procurement standards.  Since she failed medical procurement standards, separation action would have been initiated against her. She would have been advised of her rights and presented with options, including requesting an immediate discharge.  In the absence of evidence to the contrary, it must be presumed that all requirements of law and regulations were met.  The applicant did not provide any evidence to show her discharge was improper or inequitable.

	c.  Because this condition was identified within her first 180 days of service, her discharge was appropriately characterized as an entry-level separation.  All requirements of law and regulation were presumably met and the rights of the applicant were presumably protected throughout the separation process.

	d.  The uncharacterized service is assigned regardless of the reason for separation.  This uncharacterized service 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 service characterization.  The applicant received the appropriate character of service.

	d.  Her narrative reason for separation was assigned based on the fact that she was separated under the provisions of paragraph 5-11 of Army Regulation 635-200 by reason of failure to meet procurement medical fitness standards.  The appropriate separation code associated with this type of discharge is "JFW" and the only narrative reason associated with this type of separation is "Failed Medical/Physical/Procurement Standards."  Therefore, she received the appropriate narrative reason for separation and there is no reason to change it.

3.  There is insufficient evidence in the available records and the applicant did not provide sufficient evidence to substantiate a correction to her prior service, the narrative reason for separation, or the characterization of service.

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)                                         AR20130020049



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ABCMR Record of Proceedings (cont)                                         AR20130020049



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