IN THE CASE OF:	  

		BOARD DATE:	  3 December 2014

		DOCKET NUMBER:  AR20140007246 


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, in effect, correction of his uncharacterized entry-level separation to show he was medically discharged with an honorable characterization of service. 

2.  The applicant states he injured his back while serving in basic training. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 on 3 May 1989.

3.  The evidence shows the applicant was repeatedly counseled for failing to follow instructions, being disrespectful, and for a lack of motivation.

4.  His record contains a Standard Form 600 (Chronological Record of Medical Care), dated 16 May 1989, which shows the applicant visited the Troop Medical Clinic on 12, 13, and 15 May 1989 for back pain and was given Motrin and Roboxin for muscle spasms.  The applicant acknowledged he stopped taking his medication because it wasn't doing him any good.  The applicant was subsequently evaluated for possible muscle spasms after a road march and picking up rocks on 16 May 1989.  On 17 May 1989, the applicant received a temporary profile for low back pain.

5.  On 30 May 1989, he received a mental health evaluation at Community Mental Health Services – Fort Knox, KY.  The evaluation noted the applicant was failing to adapt to stress and the demands of training or routine Army life.  No psychiatric diagnosis was warranted and it was recommended that the applicant's commander considered him for an entry-level separation.  It was further noted the applicant was very immature, poorly motivated, and not willing to try.

6.  On 1 June 1989, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for being derelict in the performance of his duties.

7.  On 12 July 1989, the applicant was notified of the initiation of separation action against him for entry-level performance and conduct under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, for his demonstrated inability to adapt to military life.

8.  The applicant acknowledged notification of the proposed separation action and further acknowledged that, if approved, he would receive an entry-level separation with uncharacterized service.  He further understood that he would not be permitted to apply for reenlistment within two years of separation.  The applicant elected to consult with counsel, and he elected not to make a statement on his own behalf.

9.  On 14 July 1989, the commander recommended that the applicant receive an uncharacterized entry-level separation based on the fact that he demonstrated a lack of ability, motivation, and self-discipline.




10.  The separation authority approved the unit commander's request, on
14 July 1989, and directed the applicant's separation under the provisions of Army Regulation 635-200, chapter 11, with an uncharacterized entry level separation.

11.  On 19 July 1989, the applicant was discharged accordingly.  The applicant's DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 11, with an uncharacterized entry-level separation.  This form also shows that he completed 2 months and 17 days of creditable active military service.

12.  The applicant provides no additional evidence and his record contains insufficient evidence to support a contention that he should have been discharged due to a medical condition.

13.  Army Regulation 635-200, chapter 11, establishes policy and prescribes procedures for separating members because of unsatisfactory performance or conduct (or both) while in an entry level status.  It states, in pertinent part, that separation under this chapter applies to Soldiers who are in an entry level status and, before the date of the initiation of separation action, have completed no more than 180 days of continuous active duty and have demonstrated that they cannot or will not adapt socially or emotionally to military life.  Entry-level status is defined as the first 180 days of continuous active duty.  It further states that the character of service for members separated under the provisions of this chapter will be uncharacterized. 

14.  Chapter 3 of Army Regulation 635-200 describes the different types of characterization of service.  It provides, in pertinent part, that an uncharacterized separation is an entry-level separation.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  When a Soldier has received the maximum benefit of medical treatment for a condition that may render the Soldier unfit for further military service, the medical treatment facility conducts a medical evaluation board (MEB) to determine whether the Soldier meets the medical retention standards of Army Regulation 40-501, chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB).    

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was discharged under the provisions of Army Regulation 635-200, entry-level status, with uncharacterized service, due to an inability to adapt to the military environment.  He failed to follow instructions and standards despite receiving rehabilitative support through performance counseling.  

2.  Accordingly, his immediate commander initiated separation action prior to him completing 180 days of continuous active service.  All requirements of law and regulation were met and the rights of the applicant were fully protected through-out the separation process.  

3.  During the first 180 days of continuous active military service, a member's service is under review.  When initiation of separation is within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant an under other than honorable conditions discharge.  An honorable characterization may be given only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and it is approved by the Secretary of the Army.

4.  An uncharacterized discharge is not meant to be a negative reflection of a Soldier's military service.  It merely means the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise.  

5.  With respect to the applicant's presumed contention that he should have been discharged due to medical reasons, there is insufficient evidence in the applicant's record and he provides insufficient evidence to corroborate this claim.  There is insufficient evidence to show the applicant was physically unfit to reasonably perform his or her duties.    

6.  In light of the foregoing, 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)                                         AR20140007246



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ABCMR Record of Proceedings (cont)                                         AR20140007246



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