IN THE CASE OF:	   

		BOARD DATE:	  26 March 2015

		DOCKET NUMBER:  AR20140012128 


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 her uncharacterized entry-level separation to show she was medically discharged with an honorable characterization of service.  

2.  The applicant states she tripped over a fellow Soldier and injured her knee while in training.   

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings
* a substantial amount of post-service medical documentation 

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 January 1991.

3.  Her record contains Standard Form 513 (Medical Record - Consultation Sheet), dated 16 April 1991, which shows the applicant was examined by a physician in the Orthopedic Clinic for left knee pain which started in the latter part of 1990 after she hit her left knee against a rail.

4.  Her DA Form 4707 shows:

   a.  She was examined on 23 April 1991 for left knee pain.  A history of the injury revealed the applicant started having pain in her left knee in January 1990 when she hit her left knee against a rail.  The pain resolved completely, and at the time she entered the Army, she was not having any problems with the joint.  However, in the middle of January 1991, while training, she tripped over a fellow Soldier and reinjured her left knee.  Since that time, she had constant left knee pain exacerbated by running, kneeling, pushing up, marching, extended walking, knee bending and side straddle hop.  Despite physical therapy and medication, the pain persisted; and  
	
   b.  The physician's diagnosis was that of chronic left knee pain which existed prior to service and was not service aggravated.  The military doctor determined she was medically unacceptable for service in the Army in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 2, paragraph                 2-10d(3). 

5.  On 30 April 1991, 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.

6.  On 1 May 1991, the applicant was informed of the medical findings.  The applicant acknowledged her understanding that legal advice of an attorney employed by the Army was available to her and that she also could consult with civilian counsel at her own expense.  It also appears she acknowledged she understood she 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 1 May 1991, 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).

8.  On 3 May 1991, 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.

9.  The applicant was discharged accordingly on 8 May 1991.  She completed a total of 4 months and 6 days of creditable active service.  Her DD Form 214 shows she 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 STANDARDS NO DISABILITY" and her service was uncharacterized.

10.  The applicant provides a plethora of post-service medical documentation related to pain and swelling in her right knee.  The applicant stated she sustained a twisting injury to her right knee while trying to avoid falling down the stairs after being struck by a door at her place of employment on 10 March 2006.

11.  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.

12.  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.  

13.  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 her records should be corrected to show her uncharacterized service as honorable/medical discharge.  She 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 she 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.  In this case evidence clearly shows the applicant initially injured her left knee in 1990, prior to her entry on active duty.

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

4.  She appears to have been counseled and advised of her rights and her           DA From 4707 shows she elected a discharge from the Army without delay.  It is presumed her rights were fully protected throughout the separation process.  Since she did not sustain a medical illness or injury that was incurred in line of duty and rendered her medically unfit while entitled to basic pay, she did not qualify for a medical separation.

5.  As for the characterization of her 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 sufficient evidence to substantiate a change to her character of service or the reason for her discharge.  Therefore, she 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)                                         AR20140012128



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ABCMR Record of Proceedings (cont)                                         AR20140012128



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