BOARD DATE:	  9 September 2014

		DOCKET NUMBER:  AR20140000393 


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 the characterization of his service be changed from "uncharacterized" to honorable on his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 4 November 1996.

2.  The applicant states, in effect, he was injured while in the service.  He was supposed to be medically boarded but his record shows "honorable."

3.  The applicant provides:

* page 1 and 2 of Department of Veterans Affairs (VA) Rating Decision, dated 3 May 2012
* his DD Form 214 with a separation date of 4 November 1996 

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.  On 23 August 1996, he enlisted in the Regular Army for 4 years.  He did not complete basic combat training.

3.  On 23 September 1996, he was placed on a temporary profile for his defective left knee.

4.  On 1 October 1996, he went to sick call.  He was returned to duty with a recommendation that he be enrolled in a fitness training unit for the purpose of rehabilitating his left knee.

5.  On 8 October 1996, he was given a mental status evaluation by a social work officer.  The examiner found he met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined he was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and he had the mental capacity to understand and participate in proceedings.  

	a.  He was also diagnosed with an adjustment disorder due to a general medical condition.  In the opinion of the examiner his condition and the problems presented by the applicant were not amenable to hospitalization, treatment, transfer, disciplinary action, training, or reclassification into another type of duty within the military.  It was unlikely that efforts to rehabilitate or develop him into a satisfactory member of the military would be successful.  The applicant was unmotivated to train.

	b.  He was psychiatrically cleared for any administrative action deemed necessary by his chain of command.

	c.  The examiner recommended that it would be in the best interest of the Soldier and the Army for him to be expeditiously separated from active duty.  He was likely to become/continue as a disruptive influence to unit morale and mission.

6.  On 17 October 1996, the applicant's commander notified him he was initiating action to effect his elimination from the Army prior to the expiration of his current term of service under the provisions of paragraph 11-2, Army Regulation 635-200 (Personnel Separations, Enlisted Personnel), due to his inability to adapt to a 


military environment.  The specific reasons for the proposed action were the applicant's:

* inability to meet standards
* failure to adapt to the military 
* lack of reasonable effort
* personal desire for discharge
* refusal of medical treatment

7.  The applicant's commander advised him he had the right to:

* consult with military legal counsel or civilian counsel (at his own expense)
* submit statements in his own behalf
* obtain copies of the documents supporting his separation that would be sent to the separation authority
* waive his rights in writing

8.  The applicant waived his rights and indicated he would submit a statement in his own behalf.  He acknowledged he understood he would be ineligible to apply for enlistment in the Army for a period of 2 years after discharge.

9.  On 17 October 1996, the applicant submitted a sworn statement.  He indicated he no longer desired or wished to be in the Army.  He stated he absolved or released the Army from the obligation of correcting his knee injury.  He refused an operation at Fort Benning, GA.  He would rather have his operation at a later date at home in New York City.  He wanted to be separated from the Army and returned home.

10.  On 17 October 1996, the applicant was counseled on his decision to decline an operation on his knee while he was in the Army and that if he were to have the operation elsewhere it would be expensive.  He was advised that he would lose all military privileges and the Army would not be responsible for any payments.

11.  On 17 October 1996, the applicant's commander requested a waiver of a rehabilitative transfer and recommended that the applicant be separated prior to the expiration of his term of service due to:

* an inability to meet standards
* his failure to adapt to the military 
* a lack of reasonable effort
* his personal desire for discharge
* his refusal of medical treatment or an operation on his left knee
12.  On 18 October 1996, he was formally counseled by his commander for entry level separation.  He was advised if he was separated under the provisions of chapter 11 (Entry Level Performance and Conduct) of Army Regulation 635-200 he may be ineligible for benefits administered by the VA.  He was advised that his refusal of medical treatment and a medical review board would prevent him from receiving treatment at Government expense and the opportunity for his records to be reviewed by a medical board prior to discharge to determine if any medical disability was incurred by his injury.  In addition his refusal of treatment constituted a refusal to train and was potentially punishable under the Uniform Code of Military Justice.

13.  On 18 October 1996, the appropriate authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 11, and waived a rehabilitative transfer.  

14.  On 4 November 1996, he was discharged under the provisions of Army Regulation 635-200, chapter 11, due to entry level performance and conduct, with uncharacterized service.  He completed 2 months and 12 days of creditable active service.  

15.  His service medical records were not available for review.

16.  The VA Rating Decision, dated 3 May 2012, provided by the applicant shows that based on his claim for an increase received on 13 March 2011, the VA granted him service connection for:

* instability, left knee with a disability rating of 10 percent effective 
27 October 2003
* degenerative joint disease, left knee with a disability rating of 0 percent effective 5 November 1996 and 10 percent effective 27 October 2003
* chondromalacia, right knee associated with degenerative joint disease, left knee (also claimed as arthritis) service connected, Gulf War, Secondary static disability 10 percent effective 6 April 2011
* superficial scars, midline and lateral, left knee with a disability rating of 
0 percent effective 3 August 1999
17.  Paragraph 3-13c(1) of Army Regulation 40-501 indicates that referral to a Medical Evaluation Board (MEB) is required for internal derangement of the knee for residual instability following remedial measures, if more than moderate in degree.

18.  Army Regulation 635-200, chapter 11, in effect at the time, set policy and provided guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in an entry level status.

	a.  Separation was warranted when unsatisfactory performance or minor disciplinary infractions were evidenced by:

* inability
* lack of reasonable effort
* failure to adapt to the military environment

	b.  The policy applied to Soldiers who:

* were in an entry level status and, before the date of the initiation of 	separation action, had completed no more than 180 days of continuous 	active duty
* could not or would not adapt socially or emotionally to military life
* had demonstrated character and behavior characteristics not 	compatible with satisfactory continued service
* had failed to respond to counseling

	c.  Paragraph 11-8 stated service would be described as uncharacterized under the provisions of this chapter.

	d.  Entry level status is defined as the first 180 days of continuous active duty or the first 180 days of continuous active duty after a service break of more than 92 days of active service.

19.  Title 38, U.S. Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was processed for separation due to his inability to meet standards and failure to adapt to military life.  He failed to show a reasonable effort to improve.  He refused medical treatment for his left knee and he expressed a desire to be discharged from the Army.



2.  His service medical records were not available for review.  The circumstances of an injury to his left knee are not shown in the available records.

3.  Referral to an MEB is required for internal derangement of the knee for residual instability following remedial measures, if more than moderate in degree. He refused medical treatment for his left knee; therefore, he did not meet the criteria for referral to an MEB.

4.  At the time his commander notified him he was initiating action to eliminate him from the service, he had completed 1 month and 25 days of continuous active service.  Therefore, he was still in an entry level status at the time separation action was initiated.  Army Regulation 635-200, chapter 11 under which he was processed specifically required that his service be uncharacterized.

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would have jeopardized his rights.

6.  In view of the foregoing, there is no basis to change the characterization of his service.

7.  Disabilities which occur or get worse after a Solder is separated are treated by and compensated for by the VA.  The VA evaluates veterans throughout their lifetime, adjusting the percentage of disability based upon that Agency's examinations and findings.  

8.  The applicant is advised an uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service.  It merely means the Soldier was not in the Army long enough for his character of service to be rated as honorable or otherwise.

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)                                         AR20140000393



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ABCMR Record of Proceedings (cont)                                         AR20140000393



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