IN THE CASE OF:  	  

		BOARD DATE:  4 September 2014	  

		DOCKET NUMBER:  AR20130022277 


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 an upgrade of her discharge.

2.  The applicant states she was informed that she would receive an upgraded discharge if she did not commit any crimes or break any laws; however, she did not receive an upgraded discharge.  She also believes she suffered medical negligence in the military.  She was discharged for failing to meet medical fitness standards during basic training.  However, she reported to the medical treatment facility concerning a cyst on her wrist which interfered with her performance of pushups.  She has had surgery to remove the cyst and still suffers pain.  After she was discharged, she was called to active duty in support of the Gulf War.  She reported that she did not complete basic training and therefore was not a veteran.  She believes she was not given the opportunity to complete basic training due to the cyst on her wrist.  She believes in her heart that if she were given the opportunity to complete basic training she could have served her country to the fullest during the war.

3.  The applicant provides no additional evidence.

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 U.S. Army Reserve on 17 October 1989.  She was ordered to initial active duty for training on 14 November 1989.

3.  Her service medical records show she was seen for a variety of medical conditions between 30 November 1989 and 6 December 1989, including skin rash, gynecological issues, sore throat, and headaches.  During her follow-up examination on 6 December 1989 she reported that she felt fine now.  There is no evidence that she was seen or treated for a cyst on her wrist which interfered with her performance of pushups.

4.  Three DA Forms 4856 (General Counseling Form), dated 12 December 1989, show she was counseled by her drill sergeant, first sergeant, and company 
commander for failure to meet Fitness Training Company (FTC) standards in her third week of training.  She acknowledged each counseling with her signature.

	a.  Her drill sergeant counseled her for failure to meet the weekly Army Physical Fitness Test assessment standard of six pushups.  She was advised that she was being referred to the first sergeant and chain of command for possible elimination from the military.

	b.  Her first sergeant counseled her for failure to meet the FTC exit standards to proceed to basic training.  After 3 weeks of strenuous physical training, she was unable to perform one correct pushup which indicated that she could not put forth the effort necessary to meet Army standards.  She was advised that she was being referred to the unit commander with the recommendation for possible discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11.

	c.  Her company commander counseled her for failure to meet FTC exit criteria.  She had allowed negative thoughts to prevent her from working hard enough to improve.  Since she lacked the motivation to achieve the minimum FTC standards in 3 weeks, it was unlikely that she would achieve basic training standards.  She was advised that she was being recommended for elimination from the military under the provisions of Army Regulation 635-200, chapter 11.


5.  On 12 December 1989, her company commander notified her in writing that she was initiating action to separate her from the U.S. Army under the provisions of Army Regulation 635-200, chapter 11, for entry-level status performance and conduct.  The commander stated she was recommending an entry-level separation (uncharacterized) and she advised the applicant of her right to consult with counsel, to submit written statements in her own behalf, to obtain copies of documents that would be sent to the separation authority, and to waive the aforementioned rights.

6.  On 12 December 1989, the applicant's company commander recommended the applicant's separation under the provisions of Army Regulation 635-200, chapter 11, for failure to meet exit standards for basic training.  She acknowledged that she had been afforded the opportunity to consult with counsel.  She waived her right to consult with counsel and stated she did not desire to submit statements in her own behalf.  She further stated she understood that she would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after her discharge.

7.  On or after 12 December 1989, the applicant's battalion commander approved her discharge from the U.S. Army for entry-level status performance and conduct.  He directed the issuance of an entry-level separation (uncharacterized) under the provisions of Army Regulation 635-200, chapter 11.

8.  On 18 December 1989, she was discharged by reason of entry-level status under the provisions of Army Regulation 635-200, paragraph 11-3a.  She completed 1 month and 5 days of active service during this period.  Her service was uncharacterized.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 11, in effect at the time, provided guidance for separation of personnel because of unsatisfactory performance or conduct, or both, while in an entry-level status.  Paragraph 11-3 applied to Soldiers who were in an entry-level status and demonstrated they were not qualified for retention.  The following conditions are illustrations of conduct that did not qualify for retention:

		(1)  cannot or will not adapt socially or emotionally to military life;

		(2)  cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline;

		(3)  demonstrated character and behavior characteristics not compatible with satisfactory continued service; and

		(4)  failed to respond to counseling.

	b.  Entry-level status is defined as the first 180 days of continuous active duty or the first 180 days of continuous active service after a service break of more than 92 days.  Service for members separated under the provisions of chapter 11 will be uncharacterized.  For the purposes of characterization of service, the Soldier's status is determined by the date of notification as to the initiation of separation proceedings.

	c.  Paragraph 3-7a states 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.

	d.  Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	e.  Paragraph 5-11 states 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.  A medical proceeding, 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 military service had it been detected at that time, and that the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501 (Medical Fitness Standards), chapter 3.  The characterization of service for Soldiers separated under this provision will normally be honorable, but will be uncharacterized if the Soldier is in an entry-level status.






DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she was informed that she would receive an upgraded discharge if she did not commit any crimes or break any laws.

2.  The U.S. Army does not have a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change to the character of discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge, or both, was improper or inequitable.

3.  The applicant also contends that she was discharged for failing to meet medical fitness standards during basic training due to a cyst on her wrist which interfered with her performance of pushups.

4.  There is no evidence that she was seen or treated by medical personnel for a cyst on her wrist or any other condition which would have medically disqualified her for enlistment under procurement medical fitness standards.

5.  The evidence of record shows she was, in fact, separated because of unsatisfactory performance or conduct, or both, while in an entry-level status.  Her chain of command determined that she lacked the motivation to achieve the minimum FTC exit standards to proceed to basic training.

6.  An uncharacterized discharge 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.

7.  In view of the foregoing evidence, there is no evidentiary basis for granting the applicant's request.

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)                                         AR20130022277



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ABCMR Record of Proceedings (cont)                                         AR20130022277



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