IN THE CASE OF:	  

		BOARD DATE:	  18 June 2015

		DOCKET NUMBER:  AR20140018312 


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 a change of his uncharacterized discharge to honorable.

2.  The applicant states the discharge is improper because it was based on a medical condition.  The reason for his separation from active duty was because he did not meet procurement medical fitness standards.

3.  The applicant provides copies of the following:

* Standard Form (SF) 88 (Report of Medical Examination)
* SF 93 (Report of Medical History)
* SF 513 (Medical Record – Consultation Sheet)
* Entrance Physical Standards Board (EPSBD) Information memorandum
* Medical 200 Board summary 
* DA Form 4707 (EPSBD Proceedings)
* 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 the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant's records contain and he provided copies of the following:

* SF 88 which shows he underwent a medical examination on 24 August 1992 for the purpose of enlistment and he was found to be medically qualified
* SF 93, dated 24 August 1992, wherein he stated he was in good health and wore glasses

3.  He enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) on 28 September 1992 and was discharged on 4 November 1992.  He enlisted in the Regular Army on 5 November 1992.  He did not complete training for award of a military occupational specialty.

4.  His records also contain and he also provided copies of the following:

   a.  An SF 513, dated 13 January 1993, which shows he was diagnosed with L5-S1 spondylolisthesis by x-rays and physical examination.  The Lackland Air Force Base physicians recommended his separation from the service; however, the applicant did not strictly meet the criteria for existed prior to service (EPTS) separations as the original injury did not occur until after the applicant was enlisted and training at Lackland.  Advice was requested regarding options for the applicant, who wished to stay in the Army, or if a medical evaluation board/physical evaluation board was required.

   b.  An EPSBD Information memorandum, dated 9 February 1993, wherein the applicant acknowledged that on 9 February 1993 a medical examination revealed that he had a medical condition that disqualified him for entry into the military service as explained by the attending physician.  He also acknowledged his rights for discharge or retention.

   c.  A Medical 200 Board summary, dated and transcribed between 8 and 10 February 1993, which stated the applicant arrived at Fort Sill, OK, on 5 November 1992 for basic training.  Due to problems with the English language he was sent to Lackland Air Force Base, arriving on 10 November 1992.  He was enrolled in the English school.  He engaged in normal physical activities; however, on 5 January 1993, while doing stretching exercise for physical therapy, he began to have sharp low back pain.  He was evaluated and found to have spondylolisthesis, grade 1.  He was evaluated at that time by an Air Force physician who recommended a Medical 40 Board for EPTS.  The applicant was sent to Brooke Army Medical Center at which time he was evaluated and it was felt that acute low back pain was not indicated unless the pain continued.  The applicant had continued to have low back pain to that time.  The applicant's medical condition was disqualifying per Army Regulation 40-501 (Standards of Medical Fitness), chapter 2-37k.  A waiver was not recommended.  A permanent profile of P4 was issued.  Due to the onset of symptoms after the onset of training, Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 5, could apply.

   d.  A DA Form 4707, dated 11 February 1993, which shows he was not recommended for consideration for retention.  On 17 February 1993, he concurred with the EPSBD.  On 24 February 1993, the EPSBD approved his separation under the provisions of Army Regulation 635-200, paragraph 5-11, for failure to meet procurement medical fitness standards.  It was noted he did not complete the 8-week one station unit training.

5.  He was discharged accordingly on 1 March 1993.  He was credited with completing 3 months and 27 days of net active service.  His DD Form 214 lists in:

* Item 24 (Characterization of Service) - Uncharacterized
* Item 25 (Separation Authority) - Army Regulation 635-200, paragraph 5-11
* Item 26 - JFT
* Item 28 - Did Not Meet Procurement Medical Fitness Standards, No Disability

6.  There is no evidence he petitioned the Army Discharge Review Board within its 15-year statute of limitations for a change of his discharge.

7.  Army Regulation 40-501, in effect at the time, governed the medical fitness standards for enlistment, induction, and appointment.  Chapter 2 specified the standards to ensure that individuals were medically qualified.  Paragraph 2-37k prescribed the medical condition and physical defect of low back pain as a cause for rejection for retention.

8.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Paragraph 5-11 - Soldiers who were 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 or active duty for training for initial entry training, could be separated.  Such conditions must be discovered during the first 6 months of active duty.  Such findings would result in an EPSBD.  An uncharacterized description of service was issued if in entry-level status.  An entry-level status was the first 180 days (6 months) of continuous active duty.

   b.  Paragraph 3-7a – an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

9.  Army Regulation 635-5 (Separation Documents), in effect at the time, governed the preparation of the DD Form 214.  It stated the DD Form 214 would be prepared for all personal at the time of their retirement, discharge, or release from active duty.  The regulation stated:

* Item 24 would list the character of service
* Item 25 would list the separation authority
* Item 26 would list the proper separation program designator (SPD) representing the reason for separation
* Item 28 would list the reason for separation based on the regulatory or statutory authority

10.  Army Regulation 635-5-1 (SPD Codes), in effect at the time, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It stated the SPD code of "JFT" was applicable for Soldiers who were discharged under the provisions of Army Regulation 635-200, paragraph 5-11, with the narrative reason of "Did Not Meet Procurement Medical Fitness Standard, No Disability."

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows in January 1993 the applicant began to have sharp low back pain while doing stretching exercises.  He was evaluated and found to have spondylolisthesis, grade 1.  It was determined his medical condition was disqualifying per Army Regulation 40-501, chapter 2-37k.  An EPSBD recommended his discharge under the provisions of Army Regulation 635-200, paragraph 5-11.  

2.  He concurred with the EPSBD, the separation authority approved his discharge, and he was discharged accordingly on 1 March 1993.  His character of service was "Uncharacterized."  

3.  In accordance with regulatory guidelines, Soldiers who had completed less than 180 days (6 months) of continuous active duty would have their service uncharacterized.  That meant that the Soldier had not been in the Army long enough for his/her character of service to be rated as honorable or otherwise.  It was and still is not meant to be a negative reflection of a Soldier's military service.  He was discharged after completing 3 months and 27 days of net active service.  Therefore, he is not entitled to a change in the characterization of his service from uncharacterized to honorable.

4.  The only valid narrative reason for separation permitted under the provisions of Army Regulation 635-200, paragraph 5-11, with a corresponding SPD code of "JFT," is "Did Not Meet Procurement Medical Fitness Standards, No Disability."  Therefore, he received the proper narrative for his separation.

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)                                         AR20140018312



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ABCMR Record of Proceedings (cont)                                         AR20140018312



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