IN THE CASE OF:  	  

		BOARD DATE:  1 September 2015	  

		DOCKET NUMBER:  AR20150001460 


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 records to show he was medically discharged.

2.  The applicant states he was discharged from active duty due to medical reasons related to injuries he sustained during military training.  He states that his medical records should show that he injured his back and shoulder.  He also states that he has been trying to obtain his medical records since October 2012 and the Department of Veterans Affairs (VA) is not providing him medical coverage because his records are incorrect.

3.  The applicant provides no documentary evidence in support of his application.

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.  An SF (Standard Form) 88 (Report of Medical Examination), completed on
21 November 1981, shows the examining physician found the applicant medically qualified for enlistment in the U.S. Army.

3.  The applicant's DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows he enlisted in the U.S. Army Reserve (USAR), Delayed Entry Program, on 24 November 1981, with a military service obligation (MSO) of 6 years.  He further enlisted in the Regular Army (RA) on 
27 July 1982 for a period of 4 years with a training option in military occupational specialty (MOS) 05B (Radio Operator).

4.  Three Records of Counseling, dated 16 and 17 November, and 1 December 1982, show the applicant was counseled for:

* showing no progress in MOS 05B course
* failing to meet course objectives for MOS 05B
* discharge action under the provisions of the Trainee Discharge Program

5.  On 24 November 1982, the applicant's company commander initiated action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11 (Entry Level Performance and Conduct – Trainee Discharge Program).

   a.  The reasons for her proposed action were the applicant demonstrated that he could not meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline.

	b.  The applicant was advised of his rights and the separation procedures involved.  He was informed he had the right to request a separation physical if he felt his physical status had changed since his last examination.

   c.  He was also advised that, because he was in entry level status, the period of his service would be uncharacterized.

6.   On 29 November 1982, the applicant acknowledged notification of the proposed entry level, uncharacterized separation from the U.S. Army.

   a.  He elected not to submit statements in his own behalf.

   b.  He indicated he did not desire to have a separation medical examination if the proposed separation action was approved.

   c.  The applicant placed his signature on the document.
7.  The chain of command recommended approval of the applicant's separation action based on his entry level status performance and conduct.

8.  On 6 December 1982, the separation authority approved the commander's recommendation for discharge of the applicant, directed an entry level status separation of uncharacterized, and transfer of the applicant to the USAR (Individual Ready Reserve) to complete his MSO.

9.  The applicant's DD Form 214 (Certificate of Release of Discharge from Active Duty) shows he entered active duty on 27 July 1982, was released from active duty on 10 December 1982 under the provisions of Army Regulation 635-200, chapter 11, based on entry level status performance and conduct, and transferred to the USAR Control Group (Annual Training).  He had completed 4 months and 14 days of net active service during this period.

10.  USAR Personnel Center, St. Louis, MO, Orders D-07-055054, dated 
20 July 1988, honorably discharged the applicant from the USAR (Ready Reserve) effective 26 July 1988.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.
   
   a.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his/her employment on active duty.

   b.  Chapter 3 (Policies) provides that when a member is being separated by reason other than physical disability, his/her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he/she was unable to perform his/her duties or that acute grave illness or injury or other deterioration of physical condition occurring immediately prior to or coincident with separation rendered the member unfit.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 3 (Character of Service/Description of Service), paragraph 3-9, provides that separation will be described as entry level with service uncharacterized if processing is initiated while a Soldier is in an entry level status.
	b.  Chapter 11 provides policy and guidance for the separation of personnel because of unsatisfactory performance or conduct while in an entry level status.  Personnel who enlisted in the RA are considered to be in an entry level status if, before the date of the initiation of separation action, they have completed no more than 180 days of continuous active duty.  Service of personnel separated under the provisions of this chapter will be described as "uncharacterized."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was medically discharged because he sustained injuries to his back and shoulder during military training.

2.  Records show the applicant entered active duty in the RA on 27 July 1982.

	a.  The regulatory guidance shows that personnel who enlist in the RA are considered to be in an entry level status if, before the date of the initiation of separation action, they have completed no more than 180 days of continuous active duty.  The service of personnel separated under the provisions of Army Regulation 635-200, chapter 11, will be described as uncharacterized.

   b.  On 24 November 1982, the company commander initiated separation action because the applicant could not meet the minimum standards prescribed for successful completion of training due to aptitude, ability, motivation, or self-discipline.  At that time, the applicant had completed less than 4 months (less than 120 days) of active duty service.

   c.  The separation authority approved the separation action and directed an entry level status separation of uncharacterized.  Accordingly, the applicant was discharged on 10 December 1982.  He was credited with completing 4 months and 14 days of net active service during the period of service under review.

3.  Records show the applicant's separation under the provisions of Army Regulation 635-200, chapter 11, based on entry level performance and conduct was administratively correct and in compliance with applicable regulations in effect at the time.

4.  Despite the applicant's contention, there is no evidence of record that shows he sustained injuries to his back and/or shoulder during military training or that he had a medically unfitting condition that precluded him from fulfilling his active duty enlistment commitment.

   a.  It is noted that the applicant declined the opportunity to have a separation medical examination prior to his separation from active duty, which might have offered evidence of his medical condition(s) at the time of separation.

   b.  When a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness.

5.  Therefore, in view of the foregoing, there is no basis for granting 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)                                         AR20150001460



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ABCMR Record of Proceedings (cont)                                         AR20150001460



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