IN THE CASE OF:	  

		BOARD DATE:	  12 March 2015

		DOCKET NUMBER:  AR20140011074 


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, the characterization of his service be changed from uncharacterized to honorable.

2.  The applicant states when he was separated he was on sick duty due to an injury and he was still injured on his date of release.  As a result of a compensation and pension (C&P) examination he received at the Department of Veterans Affairs Medical Center (VAMC) in Milwaukee, WI and at the VAMC in Murfreesboro, TN, he believes his discharge should be upgraded to either a general or honorable discharge.  He received a 10 percent disability rating in 1991.  The physicians at Fort Gordon, GA refused to find what the physicians at Zablocki and York VAMC did, that he injured his lower back as a result of a weight lifting accident as well as other physical exercises ordered by drill sergeants.  His military medical records may reflect his injury, but his discharge does not.

3.  He now works for the VA as a Program Support Assistant, helping veterans get medical services from outside the Department of Veterans Affairs (VA).

4.  The applicant provides: 

* page 1 of a letter, dated 20 January 2005, from the VA Regional Office, Nashville, TN
* his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 13 December 1990


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 26 June 1990, he enlisted in the Regular Army for 3 years.  He completed basic combat training.

3.  He received formal counseling for his inability to pass the Army Physical Fitness Test (APFT) on 19 September, 9 and 21 October, 19 and 28 November, and 3 December 1990.

4.  On 5 December 1990, his commander recommended that he be separated from the service because of his inability to pass the APFT.  The commander stated:

* the applicant lacked the motivation and dedication necessary to improve his substandard performance
* he had failed the APFT on three separate occasions
* he had not been able to show significant improvement on any event

5.  On 7 December 1990, his commander notified him he was initiating action to separate him from the Army prior to the expiration of his current term of service under the provisions of chapter 11 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  He would receive an entry level separation with uncharacterized service and he would not be permitted to reenlist in the U.S. Army within 2 years from the date of his separation.  The specific reasons for his proposed actions were the applicant's APFT failures.

6.  His 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
* request a separation physical if he felt his physical status had changed since his last examination
* waive his rights in writing

7.  On 7 December 1990, the applicant acknowledged receipt of his commander's notification.  He waived his rights and did not desire to make any statements in his own behalf.  He did not request a separation physical.  

8.  On 7 December 1990, his commander submitted a recommendation for separation under the provisions of chapter 11 of Army Regulation 635-200 by reason of entry level status performance and conduct.  The applicant had entered active duty on 26 June 1990.  His 180th day of active service was 
25 December 1990.

9.  On 10 December 1990, the appropriate authority approved the separation of the applicant under the provisions of chapter 11 of Army Regulation 635-200 and waived a rehabilitative transfer.  It was directed that the applicant be transferred to the Individual Ready Reserve and that his service be uncharacterized.  

10.  On 13 December 1990, he was released from active duty.  He completed 
5 months and 18 days of continuous active service that was uncharacterized.  His service medical records were not available for review.

11.  The letter, dated 20 January 2005, from the VA shows he is service-connected for chronic low back strain with a 10 percent disability rating.

12.  Chapter 11 of Army Regulation 635-200, 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 was 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.  Entry level status is defined as the first 180 days of continuous active service or the first 180 days of continuous active service after a service break of more than 92 days of active service.

	d.  The regulation required an uncharacterized description of service for separation under this chapter.

13.  Title 38, United States Code (USC), provides for the VA to make a determination and award compensation for disabilities which were incurred in or aggravated by active military service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he had issues with his back injury.  However, there is no evidence and the applicant has not provided any substantive evidence that shows he was unable to pass the APFT due to a back injury.

2.  His military personnel record does not show he suffered a back injury or that he was treated for a back injury.  He was counseled on six occasions advising him he had to pass the APFT or he may be eliminated from the service.  There is no evidence a back injury prevented him from passing the APFT.

3.  He had less than 180 days of active service at the time separation processing was initiated.  He was in an entry level status at the time of his separation.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The regulation required that his service be uncharacterized.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.

4.  The applicant's work with veteran's issues since his separation was noted.  However, this has no bearing on his entry level status upon his separation.

5.  In view of the foregoing, there is no basis for changing the characterization of his service.

6.  Title 38, USC, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a VA rating does not establish error or injustice in the Army not separating the individual for physical unfitness or the characterization of his service.

7.  The applicant is advised an uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service.  It merely means that the Soldier had not been 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)                                         AR20140011074





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ABCMR Record of Proceedings (cont)                                         AR20140011074



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