BOARD DATE:	  10 September 2015

		DOCKET NUMBER:  AR20150001854 


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 uncharacterized entry-level separation to show he was medically discharged with an under honorable conditions (general) characterization of service.   

2.  The applicant states he wanted to finish basic training, but after he injured his knee he wasn't given a chance for it to heal so he could continue training with his platoon or restart with another platoon.  He was subsequently employed at the Department of Veterans Affairs (VA) in Indianapolis, IN, as a driver and currently as a volunteer driver at the county veterans office transporting veterans to their VA medical appointments.  He tried to seek employment at various locations but he has had a hard time because his DD Form 214 (Certificate of Release or Discharge from Active Duty) states his character of service is uncharacterized.  He feels he should have been given proper legal advice and awarded a medical discharge. 

3.  The applicant provides:

* DD Form 214
* National Guard Bureau Form 22 (Report of Separation and Record of Service)
* DA Form 2-1 (Personnel Qualification Record)
* 3 letters of support
* Several pages of medical records


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 Army National Guard on 28 February 1997.  

3.  On 6 October 1997, he entered active duty for training.

4.  The complete facts and circumstances of his discharge are not available for review with this case.  However, his record contains a DD Form 214 which shows he was discharged on 3 December 1997, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11,  by reason of entry-level performance and conduct.  He completed 1 month and 28 days of creditable active service this period.  His DD Form 214 shows in:

* item 24 (Character of Service) – Uncharacterized
* item 26 (Separation Code) – JGA
* item 28 (Narrative Reason for Separation) – Entry Level Performance and Conduct

5.  The applicant provides:

   a.  A Standard Form 600 (Chronological Record of Medical Care), dated        8 October 1997, which shows he was examined at the 43rd Adjutant General Battalion, Fort Leonard Wood, MO, Optometry Clinic.

   b.  A DA Form 5181 (Screening Note of Acute Medical Care), dated             14 October 1997, which shows he went to the medical clinic with a chief complaint of high blood pressure.  It is noted the applicant told the attending physician that he wanted to go home, that he was not on medication, and that he was stressed out.  Based on the physician's notes, it appears the applicant was being considered for a possible diagnosis of an adjustment disorder.
   
   c.  A DA Form 5181, dated 20 October 1997, which shows he sought treatment for bumps on his testicles.
   
   d.  Emergency room intake instructions, dated 22 October 1997, which shows he was evaluated for left leg and heel pain and diagnosed with tendonitis. The applicant's condition upon release was improved and he was returned to duty.
   
   e.  A DA Form 5181, dated 27 October 1997, which shows he was evaluated at the clinic for left foot pain.  It was noted the applicant may have had a possible stress fracture and it appears he was placed in a special shoe for five days.
   
   f.  A DA Form 5181, dated 3 November 1997, which shows he was evaluated at the clinic for pain in his left foot.  The applicant stated his foot started hurting after physical training and for approximately the past two weeks.  It was noted the pain was from overuse and he was returned to duty.  It appears he was also seen on this day for blood in his urine and stool and he was diagnosed with possible anal fissures.
   
   g.  A medical document, issued by the St. Vincent Carmel Hospital, Carmel, IN, which shows the applicant was examined on 2 November 2006 for left knee pain.  The examination demonstrated normal bone alignment and mineralization.

   h.  Letters from a Veterans Services Officer, the Past Post Commander and Current Historian of American Legion Post Number 173, and his mother, who attest to his dependability and difficulty in obtaining employment due to his uncharacterized discharge.

6.  There is no indication in the applicant's records that he underwent a medical evaluation that resulted in referral to a medical evaluation board (MEB) or referral to a physical evaluation board (PEB).

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

   a.  Chapter 11 of this regulation, in effect at the time, provided for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry level status.  This provision of regulation applied to individuals who had demonstrated that they were not qualified for retention because they could not adapt socially or emotionally to military life, or because they lacked the aptitude, ability, motivation, or self discipline for military service, or they had demonstrated characteristics not compatible with satisfactory continued service.  The separation policy applied to Soldiers who could not meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline.  The regulation required an uncharacterized description of service for separation under this chapter.

   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 3-7b 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.  

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply 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.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  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 their office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

9.  Chapter 61, Title 10, U.S. Code, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency (USAPDA), under the operational control of the Commander, U.S. Army Human Resources Command (USAHRC), is responsible for operating the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in Title 10, U.S. Code, chapter 61, and in accordance with Department of Defense Directive 1332.18 (Separation or Retirement for Physical Disability) and Army Regulation 635-40.  Soldiers enter the PDES in four ways:

	a.  Referred by an MEB.  When a Soldier has received maximum benefit of medical treatment for a condition that may render the Soldier unfit for further military service, the medical treatment facility conducts an MEB to determine whether the Soldier meets the medical retention standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  If the Soldier does not meet medical retention standards, he or she is referred to a PEB to determine physical fitness under the policies and procedures of Army Regulation 635-40.

	b.  Referred by the MOS/Medical Retention Board (MMRB).  The MMRB is an administrative screening board the chain of command uses to evaluate the ability of Soldiers with permanent 3 or 4 medical profiles to physically perform in a worldwide field environment in their primary military occupation specialty.  Referral to an MEB/PEB is one of the actions the MMRB convening authority may direct. 

	c.  Referred as the result of a fitness for duty medical examination.  When a commander believes a Soldier is unable to perform military occupational specialty-related duties due to a medical condition, the commander may refer the Soldier to the medical treatment facility for evaluation.  If evaluation results in an MEB and the MEB determines that the Soldier does not meet medical retention standards, the Soldier is referred to a PEB. 

	d.  Referred as a result of Headquarters Department of the Army action.  The Commander, USAHRC, upon recommendation of The Surgeon General, may refer a Soldier to the responsible medical treatment facility for medical evaluation as described above.  USAHRC also directs referral to a PEB when it disapproves the MMRB recommendation to reclassify a Soldier to a different MOS.

10.  Army Regulation 635-40, in pertinent part, provides that Soldiers enter the PDES under the presumption they are physically fit.  This is known as the Presumption of Fitness Rule which states a Soldier is presumed fit because of continued performance of military duty up to the point of separation for reasons other than physical disability.  The philosophy behind the rule is that military disability compensation is for career interruption, compensation for service-incurred conditions.  Application of the Presumption of Fitness Rule does not mandate a finding of unfit.  The presumption is overcome if the preponderance of evidence establishes the Soldier, because of disability, was physically unable to perform adequately the duties of his/her office, grade, rank or rating.  This circumstance is aimed at long-term conditions.  It may also be overcome if acute, grave illness or injury, or other deterioration of the Soldier's physical condition occurred immediately prior to, or coincident with, processing for separation or retirement for reasons other than physical disability which rendered the Soldier unfit for further duty.  Future duty is a factor in this circumstance.
11.  Once an MEB determines the Soldier fails medical retention standards, the Soldier is referred to a PEB.  The PEB initially conducts an informal adjudication. This is a records review of the MEB and applicable personnel documents without the Soldier present.  The informal decision is forwarded to the Physical Evaluation Board Liaison Officer for counseling of the Soldier.  If after counseling, the Soldier concurs with the findings, the case is forwarded to the USAPDA to accomplish disposition.  If the Soldier disagrees with the findings, he/she has the right to submit a rebuttal for reconsideration and the right to elect a formal hearing.  At the time of election for a formal hearing, the Soldier may also elect to appear or not appear, and to be represented by the regularly appointed military counsel or to have counsel of his choice at no expense to the government.  He/she may also request essential witnesses to testify in his/her behalf.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected by changing the narrative reason for his uncharacterized entry level status discharge to a medical discharge with an under honorable conditions (general) characterization of service was carefully considered and determined to lack merit.

2.  The evidence shows the applicant sought medical treatment on at least five occasions in his 1 month and 28 days of active service for various ailments to include knee pain.  However, a DA Form 5181, dated 14 October 1997, shows he went to the medical clinic and told the attending physician that he wanted to go home, that he was not on medication, and that he was stressed out.  Based on the physician's notes, it appears the applicant was being considered for a possible diagnosis of an adjustment disorder. 

3.  His record is devoid of any evidence and he has not provided sufficient evidence of any specific injury or medical condition that would have rendered him unfit for continued service.  Additionally, there is no indication in his records that he underwent a medical evaluation with subsequent referral to an MEB or a PEB.

4.  In the absence of any medical evidence to the contrary, administrative regularity is presumed in the applicant's separation process.  Furthermore, the applicant has failed to overcome the presumption of fitness.  The presumption is overcome if the applicant can show, through a preponderance of evidence, that because of a disability, he was physically unable to perform adequately the duties of his office, grade, rank or rating prior to his separation from the Army.

5.  As for the characterization of his 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 his character of service or the reason for his discharge.  Therefore, it appears he 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)                                         AR20150001854





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ABCMR Record of Proceedings (cont)                                         AR20150001854



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