IN THE CASE OF:	  

		BOARD DATE:	  30 July 2014

		DOCKET NUMBER:  AR20130020367 


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 that the narrative reason for his separation and the characterization of his service reflected on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to reflect that he was honorably discharged for medical reasons.

2.  He states he completed progression of training as required and was on profile from October 1999 until his discharge in March 2000.  He requested his military records and after receiving them he realized that he had his training certificates and medical profile which prove that he was injured during training which prevented him from participating in physical activities and continuing his military service. 

3.  He provides:

* DD Form 214
* Enlistment training reservation confirmation
* Standard Form (SF) 93 (Report of Medical History)
* SF 88 (Report of Medical Examination)
* Emergency Department Treatment Record
* Air Force (AF) Form 1535 (Physical Therapy Consultation)
* Defense Language Institute, English Language Center, Certificate of Attendance



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 record shows that he is an Hispanic-American who completed high school and nearly 2 years of college in Puerto Rico.  He underwent a pre-entrance medical examination on 12 August 1999 and was cleared for enlistment.  He enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) on 12 August 1999.

3.  The applicant provides a training reservation confirmation sheet that was prepared on 12 August 1999 in preparation for his enlistment in the Regular Army.  This document shows that he was to report to the Military Entrance Processing Station on 26 October 1999 and that he was tentatively scheduled to attend the following training courses on the start dates shown for the periods indicated:

* English as a Second Language (ESL), 1 November 1999, 26 weeks
* Basic Training, 19 May 2000, 9 weeks
* Training Path, 25 July 2000, 11 weeks

4.  He enlisted in the Regular Army on 30 September 1999.

5.  On 25 October 1999, the applicant sought medical treatment for eye irritation, pain in his left knee and pain in his throat in the Emergency Department of Wilford Hall Medical Center (WHMC), Lackland Air Force Base (LAFB), TX.  It was noted that he had been at the LAFB for 2 weeks.  The applicant described left knee pain after running.  He said he had not had any problems, except for once when he fell indirectly onto his knee.  He kept running in physical training (PT) without any trouble until afterwards.  There was no effusion, no swelling and no other problems just pain when he walks or stands for a long period.  He had mild problems when climbing stairs.  He had no history of problems with his knees, prior surgeries, or prior trauma.  He was able to move around without any trouble, walking room to room with a mild limp on his left side.  He had no obvious fracture, no Baker's cyst and he was not suffering from a deep vein thrombosis.  The examining physician diagnosed him with a left knee sprain, prescribed Naprosyn for the applicant's knee pain and referred him to see a sports medicine doctor the following day.

6.  On 26 October 1999, the applicant consulted with a Staff Physical Therapist at WHMC regarding his left knee pain.  As a result, he was issued a WHMC Form 2968 (Trainee Temporary Duty Restriction) which restricted him from training in the following activities until 9 November 1999:

* Running
* Physical conditioning
* Confidence course
* Drilling and marching

7.  On 10 January 2000, the applicant's company commander notified him he was initiating action to separate him from the Army with an entry level separation under the provisions of Army Regulation 635-200, chapter 11 because he had failed to meet minimum requirements.  Specifically, he had failed to achieve the minimum score of 70 on the English Comprehension Level (ECL) test within the required time.  The commander advised the applicant that he would recommend that his service be uncharacterized.  He advised the applicant of his rights to consult with counsel and/or civilian counsel at no expense to the government within a reasonable time, submit written statements in his behalf, obtain copies of documents that would be sent to the separation authority supporting the proposed separation, or waive any or all of the aforementioned rights.  The applicant acknowledged receipt of the notification on the same date.

8.  The applicant indicated he was advised of the basis of the contemplated action to separate him under the provisions of Army Regulation 635-200, chapter 11, and its effect, of the rights available to him, and the effect of any action taken by him in waiving any of his rights.  He acknowledged his understanding that he would receive an entry level discharge.

9.  The applicant's company commander recommended his separation from the Army prior to the expiration of his current term of service under the provisions of Army Regulation 635-200, chapter 11, for failing to meet minimum standards, to wit:  failing to achieve the minimum score required on the ECL test within the allotted time.  It was noted that he had not been awarded a military occupational specialty (MOS) or been subjected to any adverse disciplinary action.

10.  The separation authority approved the request and directed the applicant's discharge under the provisions of Army Regulation 635-200, chapter 11, for entry-level performance and conduct with uncharacterized service; as such a discharge certificate would not be issued.

11.  On 9 March 2000, he was discharged accordingly.  His DD Form 214 shows:

* his service was uncharacterized
* the separation authority was Army Regulation 635-200, chapter 11
* his separation program designator (SPD) code was JGA
* his narrative reason for separation was "Entry Level Performance and Conduct"

12.  The applicant provides a Defense Language Institute, English Language Center, Certificate of Attendance, dated 18 February 2000, which shows he completed 18 weeks of the American Language Course given at LAFB.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 provides for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry-level status.  This provision applies to individuals who demonstrated that 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 they had demonstrated characteristics not compatible with satisfactory continued service.  The separation policy applies to Soldiers who could not meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline.  This regulation requires an uncharacterized description of service for separation under this chapter.

14.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states that SPD code JGA is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 11, by reason of entry-level performance and conduct.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that the narrative reason and characterization of service on his DD Form 214 be changed was carefully considered.

2.  Although evidence shows that the applicant was given a temporary profile that limited his physical activity, there is absolutely no indication that this had anything to do with his separation.  The fact that he was awarded a certificate showing he attended and completed 18 weeks of his scheduled 26-week training at the Defense Language Institute is duly noted.  However, it is also recognized that for administrative reasons completion certificates are prepared well ahead of graduation day.

3.  Although the applicant now contends that it was his medical condition which caused him to be discharged, there is no evidence in his record and he has failed to provide sufficient evidence to support that claim.  

4.  Evidence clearly shows that the basis for the applicant's discharge was his inability to achieve the minimum score of 70 on the ECL test within the required time.  The applicant does not contend, nor does he provide any evidence which shows, he successfully passed the ECL test in a timely manner.

5.  The available evidence shows the applicant was separated for entry-level performance and conduct for failing to achieve an established Army academic standard.  Army policy requires an uncharacterized description of service for separation under this circumstance.

6.  Therefore, the type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

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)                                         AR20130020367





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ABCMR Record of Proceedings (cont)                                         AR20130020367



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