IN THE CASE OF:  	  

		BOARD DATE:  13 November 2014	  

		DOCKET NUMBER:  AR20140004473 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his character of service as "honorable-medical" in lieu of "uncharacterized."

2.  The applicant states his narrative reason for separation should be service-connected disability.  Additionally, the letter he received from the Department of Veterans Affairs (VA) on 7 August 2012 shows he received an honorable discharge.  His DD Form 214 does not reflect that.  He was only 19 years of age at the time and no one explained his full rights and options.  In effect, the information was not clear enough for him to make an informed decision or choice.  He now wants to correct the wrong.  The limited range of motion to his right ankle from a service-related injury has curtailed his physical activity considerably.  After his release from active duty, his condition worsened.  If he had been aware of all his options, he would have completed training and made the military a career. 

3.  The applicant provides his DD Form 214 and a letter from the VA. 

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 he was born in May 1969 and enlisted in the Regular Army at age 19 on 14 September 1988.  He was initially assigned to Fort Knox, KY for completion of basic combat training. 

3.  Two weeks into training, on 30 September 1988, he complained of right heel pain.  He was evaluated at Ireland Army Community Hospital, Fort Knox.  His DA Form 4707 (Entrance Physical Standard Board (EPSBD) Proceedings) shows: 

	a.  He complained of right heel pain.  He stated that he was unable to run or do strenuous activity.  He had been treated with anti-inflammatory medications, crutches, and a splint without significant improvement to his symptoms.  He related having his Achilles' tendon rupture approximately 1 and 1/2 years earlier with surgical fixation.  

	b.  He had some tenderness in the right Achilles' tendon with thickening and scarring noted subcutaneously.  He had full range of motion and his X-rays were negative.  His diagnosis was that of Achilles tendonitis, chronic, secondary to previous rupture.  The military doctor determined he was medically unacceptable for service in the Army in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 2, paragraph 2-11j, and that a waiver was not recommended. 

4.  On 11 October 1988, the medical approving authority approved the findings shown on the DA Form 4707 as stated/diagnosed by the medical doctors and stated on his narrative summary.

5.  On 12 October 1988, the applicant's EPSBD Proceedings were forwarded to the applicant's unit for appropriate action in accordance with paragraph 5-11 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

6.  It appears on or about 12 October 1988, the applicant acknowledged his understanding that legal advice of an attorney employed by the Army was available to him and that he also could consult with civilian counsel at his own expense.  It also appears he acknowledged he understood he could request to be discharged from the Army without delay or request retention on active duty.  After counseling, the applicant appears to have concurred with the proceedings and requested to be discharged from the Army without delay.

7.  On 20 October 1988, the discharge authority approved the applicant's separation from the Army under the provisions of Army Regulation 635-200, paragraph 5-11, by reason of failure to meet procurement medical fitness standards.

8.  The applicant was discharged accordingly on 25 October 1988.  He completed a total of 1 month and 12 days of creditable active service.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 5-11.  The narrative reason for separation shows "DID NOT MEET PROCUREMENT MEDICAL FITNESS STANDARD NO DISABILITY" and his service was uncharacterized.

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

	a.  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 EPSBD, 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, 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, chapter 3.  The characterization of service for Soldiers separated under this provision will normally be honorable, but will be uncharacterized if the Soldier has not completed more than 180 days of creditable continuous active duty service prior to the initiation of separation action.

	b.  An uncharacterized separation is an entry-level separation.  A separation will be described as an entry-level separation if processing is initiated while a member is in entry-level status, except when characterization under other than honorable conditions is authorized by the reason for separation and is warranted by the circumstances of the case or when the Secretary of the Army, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.

	c.  Paragraph 3-7a provides that 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.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service.  Examples are manifestation of lesions or symptoms of chronic disease from date of entry on active military service (or so close to that date of entry that the disease could not have started in so short a period) will be accepted as proof that the disease existed prior to entrance into active military service.  

11.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation.  Chapter 2 provides the physical standards for enlistment/induction.  Paragraph 2-11 refers to conditions which may result in failure of procurement standards.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show his uncharacterized service as honorable/medical discharge.  He confuses the character of service with the narrative reason for separation.  The characterization or description of service is determined by directives authorizing separation.  It can be honorable, under honorable conditions (general), under other than honorable conditions, bad conduct, dishonorable, or uncharacterized.  The narrative reason for separation is based on the regulatory or statutory authority.

2.  The evidence of record shows medical authorities determined that he suffered from a disqualifying medical condition that existed prior to service immediately after reporting for active duty.  According to accepted medical principles, the manifestation of a chronic disease from the date of entry into active military service (or so close to that date of entry that the disease could not have started in so short a period) is accepted as proof that the disease existed prior to entrance into active military service.

3.  Consequently, his records were evaluated by an EPSBD that found him medically unfit for a condition that was neither incurred in nor aggravated by his active service.  There was compelling evidence to support a finding that he had a preexisting condition.  Accordingly, the EPSBD recommended his separation.

4.  He appears to have been counseled and advised of his rights.  In the absence of evidence to the contrary, it is presumed he elected a discharge from the Army without delay.  It is also presumed all his rights were fully protected throughout the separation process.  Since he did not sustain a medical illness or injury that was incurred in line of duty and rendered him medically unfit while entitled to basic pay, he did not qualify for a medical separation.

5.  As for the characterization of his service, a member's service is under review during the first 180 days of continuous active military service.  When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant a discharge under other than honorable conditions.  An honorable characterization may be issued only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and is approved by the Secretary of the Army.

6.  In all other circumstances, an entry-level (uncharacterized) separation is issued regardless of the reason for separation.  An uncharacterized discharge is neither positive nor negative; it is not derogatory.  It simply means the Soldier did not serve on active duty long enough for his or her service to be rated.

7.  There is no evidence in the available records and the applicant did not provide evidence to substantiate a change to his character of service or the reason for his discharge.  The applicant's age at the time is not related to the reason for his separation action or the uncharacterized discharge.  The key issue is his preexisting condition not his age.  Therefore, he is not entitled to the requested relief.

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)                                         AR20140004473



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140004473



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1