IN THE CASE OF:	  

		BOARD DATE:	  25 August 2015

		DOCKET NUMBER:  AR20140021632 


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 DD Form 214 (Certificate of Release of Discharge from Active Duty) to show his service is uncharacterized or characterized as under honorable conditions (general).

2.  The applicant states, in effect, the dishonorable discharge he received is unjust.  He received a punitive discharge, which requires a trial by court-martial.  He was never court-martialed.  The characterization of service listed on his
DD Form 214 has caused him to lose many opportunities, which could have improved the quality of his life.  

3.  The applicant provides his DD Form 214. 

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 underwent a physical examination prior to enlistment which resulted in the completion of a Standard Form (SF) 88 (Report of Medical Examination) and an SF 93 (Report of Medical History), both are dated 29 June 1995.  

	a.  His SF 88 shows the examining physician noted the applicant had a slightly enlarged gland and duct.  The applicant had marks and scars on his body that were normal in appearance and he had dry skin on his hand.

	b.  His SF 93 shows he annotated “yes” to indicate that he previously had or currently had a "tumor, growth, cyst, cancer."

	c.  The examining physician determined the applicant was medically qualified for enlistment.

3.  The applicant enlisted in the Regular Army on 15 August 1995.

4.  His record contains a DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings), dated 16 October 1995, which shows:

a. At the time of the EPSBD, the applicant was a 30-year old male in the
8th week of basic combat training.  The subjective medical findings stated his “legs swell up to the knees with prolonged standing or physical exertion; very painful, with cramping at night.”  “Also, right submandibular mass; +1 pitting edema at this time.”  He was diagnosed with idiopathic lymphedema and 
lymphangia.

	b.  The EPSBD determined the applicant did not meet medical fitness standards for enlistment under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), paragraph 2-4h.  The EPSBD stated the condition was an existed prior to service (EPTS) medical condition that was not aggravated by his service. Further, the applicant did not meet retention standards under the provision of Army Regulation 40-501, chapter 3.  The EPSBD recommended the applicant be separated from military service under the provisions of Army Regulation 635-200 (Personnel Separations- Enlisted Personnel), paragraph 5-11.

	c.  The applicant concurred with the proceedings and requested a discharge from the U.S. Army without delay.  



5.  The applicant's record does not contain any record of punitive or nonjudicial punishment under the provisions of the Uniform Code of Military Justice (UCMJ). Additionally, there is no evidence or record showing he was convicted by a general court-martial and sentenced to a dishonorable discharge.  

6.  The applicant was discharged on 14 November 1995.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 5-11, for a failure to meet procurement medical fitness standards with his service characterized as dishonorable.  He completed 3 months of net active service and he was assigned a separation program designator (SPD) code of "JWF." 

7. Army Regulation 635-200, in effect at the time, provides for the separation of enlisted personnel.  

	a.  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.

	b.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

	c.  Paragraph 3-9 provides that an entry-level separation is an uncharacterized 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 condition is authorized under 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.  

	d.  Paragraph 3-10 states that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence ordered dully executed.

	e.  Paragraph 5-11 provides that 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 entrance on active duty, active duty training, or initial entry training will be separated.  A medical proceeding, 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, that the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at that time, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  The characterization of service for Soldiers separated under this provision of regulation will normally be honorable, but will be uncharacterized if the Soldier is in an entry-level status.

8.  Entry-level status is defined as the first 180 days of continuous active service or the first 180 days of continuous active service following a break in service of more than 92 days of active military service.

9.  Army Regulation 635-5-1 (SPD Codes) states an SPD code of "JFW" is used to indicate separation under the provisions of Army Regulation 635-200, paragraph 5-11, for failure to meet procurement medical fitness standards.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of any evidence indicating he was tried by a court-martial, let alone a conviction by a general court-martial.  In fact, his record does not contain any form of punishment or negative counseling.  A Soldier may only receive a dishonorable discharge pursuant to an approved conviction by a general-court-martial.  As such, the dishonorable characterization listed on his DD Form 214 is clearly an error.

2.  The applicant was discharged because he had an EPTS medical condition that rendered him unfit for retention and would have prevented him from enlistment had the condition been discovered at the time of his enlistment physical.  He was recommended for discharge by an EPSBD for these reasons and he was discharged accordingly after completing less than 180 days of net active service. 

3.  As such he is entitled to correction of his DD Form 214 to show he received an uncharacterized discharge.  


BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing him a new DD Form 214 showing his service was "Uncharacterized."



      __________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)                                         AR20140021632



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ABCMR Record of Proceedings (cont)                                         AR20140021632



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