IN THE CASE OF:  

		BOARD DATE:  22 October 2014  	  

		DOCKET NUMBER:  AR20140003702 


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 his uncharacterized discharge be changed to an honorable discharge by reason of permanent disability.

2.  The applicant states that he entered the Army with all good intentions and respect and did not realize that a prior injury would be aggravated by the service.  He was unable to serve due to a condition he had that he was aware of but did not realize it would prevent him from fulfilling his obligation. 

3.  The applicant provides copies of his Entrance Physical Standards Board (EPSBD) proceedings and his separation proceedings. 

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 at 30+ years of age on 25 August 1998 for a period of 3 years and training as an infantryman.  At the time of his entrance processing he indicated that he was in good health and he made no mention of any prior injuries.  He was transferred to Fort Benning, Georgia to undergo his one-station unit training.

3.  On 8 September 1998, during the applicant’s second week of training, an EPSBD was convened which determined that the applicant had a herniated disc that existed prior to his service (EPTS).  The board determined that his condition did not meet medical fitness standards for enlistment and that his condition was not aggravated by his service.  The board recommended that he be separated from the service.  

4.  On 22 September 1998, the applicant made a sworn statement in which he stated that a year and a half earlier he had been in an automobile accident in which he was rear-ended and suffered lower back injuries which included two herniated discs.  He also stated that he did not realize that his physical condition would prevent him from completing the physical part of his training.

5.  On 28 September 1998, the applicant’s commander advised him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, chapter 7, for erroneous entry due to his failure to notify officials that he had been previously treated for his back condition at the time of enlistment. 

6.  The applicant waived all of his rights and elected not to make a statement in his own behalf.

7.  On 13 October 1998, the appropriate authority approved the recommendation for discharge.

8.  Accordingly, he was discharged on 28 October 1998 under the provisions of Army Regulation 635-200, chapter 7, due to erroneous entry.  He had served      1 month and 24 days of active service and his service was uncharacterized.

9.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-11 specifically provides that 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 or active duty 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 six 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 that time, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501, chapter 3.  The characterization of service for Soldiers separated under this provision of regulation will normally be honorable, but will be uncharacterized if the Soldier is in an entry level status.

10.  Army Regulation 635-200, paragraph 7-15, of that regulation provides, in pertinent part, that an erroneous exists when it is discovered that a Soldier failed to meet the qualifications for enlistment.  Soldiers separated under this chapter may be awarded an honorable discharge, or a general discharge, or a discharge under other than honorable conditions.  If in an entry level status the characterization will be uncharacterized.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his uncharacterized discharge should be changed to a discharge by reason of permanent disability has been noted and appears to lack merit.

2.  The applicant concealed his prior back injury at the time he enlisted and in all likelihood would have been rejected for enlistment had it been known at the time.

3.  Therefore, the evidence of record shows he was properly discharged for erroneous entry in accordance with the applicable laws and regulations with no indication of any violations of the applicant’s rights.

4.  The applicant entered the Army with a condition that was EPTS and in which he concealed or failed to make known to enlisting officials.

5.  Accordingly, there appears to be no basis to grant the applicant’s request for an upgrade of his discharge.

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)                                         AR20140003702





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ABCMR Record of Proceedings (cont)                                         AR20140003702



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