BOARD DATE:	  30 October 2014

		DOCKET NUMBER:  AR20140004715 


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 due to physical disability.

2.  The applicant states, in effect, he enlisted with a medical waiver for his knee and while in basic training he began to experience problems with his knee.  He goes on to state that based on poor advice from his leadership, he elected discharge to seek medical attention from a civilian doctor.  He believed that he would have the potential to return to the Army a few years after he had recovered.  He believes he deserves an honorable discharge due to physical disability. 

3.  The applicant provides a third-party letter from his uncle (a service representative) and copies of his medical treatment records.

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 with a medical waiver for his right knee on 30 December 1997, for a period of 5 years and training as a military police.  He was transferred to Fort McClellan, Alabama to undergo one-station unit training.

3.  During his second week of training he began seeking medical treatment for his knee.  On 2 February 1998, an Entrance Physical Standards Board (EPSB) was conducted which determined that the applicant did not meet entrance standards due to reconstructive surgery on his knee that existed prior to service.

4.  The applicant was advised of his rights under the EPSB and elected to request separation from the service.

5.  On 6 February 1998, he was discharged under the provisions of Army Regulation 635-200, paragraph 5-11, due to failure to meet procurement medical fitness standards.  He had served 2 months and 6 days of active service and his service was uncharacterized.  He was assigned a Reentry (RE) code of 3.

6.  Army Regulation 635-200 sets forth the policy for the separation of enlisted personnel.  Paragraph 5-11 provides the criteria for the separation of personnel who did not meet procurement medical fitness standards when accepted for enlistment.  It states that medical proceedings must establish that a medical condition was identified by appropriate military medical authorities within 
6 months of initial active duty training that would have temporarily or permanently disqualified the member for entry into military service had it been detected at the time of enlistment.  While an honorable or general discharge may be issued when clearly warranted by unusual circumstances involving personal conduct and performance of duty, personnel who are in an entry-level status (ELS) will receive “uncharacterized” service.  An honorable discharge is rarely ever granted during the ELS period, which comprises the first 180 days of continuous active service or the first 180 days of continuous active service after a break in service of more than 92 days.

7.  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 congenital malformations and hereditary conditions or similar conditions in which medical authorities are in such consistent and universal agreement as to their cause and time of origin that no additional confirmation is needed to support the conclusion that they existed prior to military service.  Likewise, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been processed for a medical separation has been noted.  The applicant was diagnosed with having had surgery on his knee prior to entering the service and admitted it at the time he entered the service.  However, for reasons not explained in the available records, he was granted a waiver to enlist.  Unfortunately, his prior injury had not reached the point that he could undergo the training that was required and it became apparent early in his training. 

2.  In the absence of evidence to show otherwise, it must be presumed that the applicant’s administrative discharge was correct and in conformance with applicable regulations with no indication of any violations of the applicant’s rights.

3.  It was also established that his condition existed prior to service and was a disqualifying condition which became apparent when he attempted to undergo training.

4.  Accordingly, he was properly discharged after undergoing the required medical examinations and there is no basis to grant him a medical discharge for a condition he had when he enlisted.  As he was in an ELS status, his discharge was appropriately uncharacterized.

5.  Therefore, in the absence of evidence to show otherwise, there appears to be no basis to grant his 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 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)                                         AR20140004715



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ABCMR Record of Proceedings (cont)                                         AR20140004715



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