IN THE CASE OF:  	

      BOARD DATE:  	21 August 2013

      CASE NUMBER:  	AR20130005013
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review and considering the Discussion and Recommendation which follows, the Board determined the discharge was both proper and equitable and voted to deny relief.




      
      
      Presiding Officer
      
I certify that herein is recorded the true and complete record of the proceedings of the Department of the Army Discharge Review Board in this case.

THE APPLICANT’S REQUEST AND STATEMENT:

1.  The applicant requests an upgrade of his uncharacterized discharge to honorable and a change to the narrative reason for the discharge.

2.  The applicant states, in effect, any other discharge under this type of separation is simply a dishonorable discharge.  He was denied the Montgomery GI Bill because of this mistake; going back to school and completing a degree would greatly improve his situation. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		8 March 2013
b. Discharge received:			Uncharacterized
c. Date of Discharge:			7 December 2001
d. Reason/Authority/SPD/RE:		Disability, Severance Pay, Chapter 4, paragraph 4-						24b(3), AR 635-40, JFL, RE-3
e. Unit of assignment:			D Co, 1-46th Infantry Regiment, Fort Knox, KY
f. Current Enlistment Date/Term:  	14 August 2001, 3 years
g. Current Enlistment Service:  	3 months, 24 days
h. Total Service:			3 months, 24 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-1
l. Military Occupational Specialty:	None
m. GT Score:				114
n. Education:				GED Certificate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		None
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		No
u. Prior Board Review:			No

SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 14 August 2001, for a period of 3 years.  He was 23 years old at the time with a GED Certificate.  He was attending basic training at Fort Knox, KY, when his separation was initiated.

SEPARATION FACTS AND CIRCUMSTANCES

1.  The evidence of record shows that on 6 November 2001, a Medical Evaluation Board diagnosed the applicant with a medical condition that made him unfit to perform his military duties and referred him to a Physical Evaluation Board (PEB).  

2.  On 20 November 2001, the PEB determined the applicant was physically unfit to perform his military duties due to a condition (chronic bilateral knee pain, multi-level stress fractures) that occurred in the line of duty and was not due to misconduct.  The PEB recommended separation with severance pay.  

3.  On 21 November 2001, having been informed of the findings and recommendations of the PEB, the applicant concurred and waived a formal hearing of his case.  

4.  On 21 November 2001, the PEB was approved for the Secretary of the Army.

5.  On 4 December 2001, DA, HQS, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, Orders 338-0162, discharged the applicant from the Regular Army effective 7 December 2001.

6.  The applicant’s record does not contain any evidence of unauthorized absences or time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

The record did not contain any counseling statements or Uniform Code of Military Justice (UCMJ) actions.

EVIDENCE SUBMITTED BY THE APPLICANT 

The applicant provided a DD Form 149; DD Form 214; and Discharge Orders 338-0162.

POST-SERVICE ACTIVITY: 

The applicant did not provide any with his application.

REGULATORY AUTHORITY  

1.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of a physical disability.  Chapter 4 provides for the separation of enlisted Soldiers found to be unfit by a Physical Evaluation Board (PEB) due to a condition which occurred in the line of duty and not due to the Soldier’s misconduct.  Paragraph 4-24b(3) provides that Soldiers not having sufficient time in service for retirement would be separated by reason of disability with severance pay.  

2.  The characterization of service for Soldiers separated under the provisions of Chapter 4, AR 635-40 will normally be honorable unless the Soldier is in an entry-level status.  The service of Soldiers in an entry-level status will be uncharacterized.  A Soldier is in an entry-level status if the Soldier has not completed more than 180 days of creditable continuous active duty prior to the initiation of separation action.

3.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides 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 identifies the SPD code of "JFL" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-40, Chapter 4-24B(3), for disability, severance pay.

4.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JFL" will be assigned an RE Code of 3.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge and a change to the narrative reason was carefully considered.  However, after examining the applicant’s military records and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or a change to the narrative reason for the separation.  

2.  The proceedings of the PEB determined the applicant was physically unfit to perform his military duties due to a condition that occurred in the line of duty and was not due to misconduct.  The PEB recommended separation with severance pay.  The applicant agreed with these findings and the proposed action for administrative separation from the Army.  

3.  The analyst was satisfied that all requirements of law and regulation were met and that the rights of the applicant were fully protected through the separation process.  A Soldier is in entry-level status (ELS) for the first 180 days of continuous active duty.  

4.  The purpose of the entry-level status is to provide the Soldier a probationary period.  Army Regulation 635-200 also provides, except in cases of serious misconduct, that a Soldier’s service will be uncharacterized when his separation is initiated while the Soldier is in entry level status.  This is not an adverse separation action and denotes only the individual had less than 180 days on active duty. 

5.  An honorable discharge may be granted only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.  The analyst determined no such unusual circumstances were present in the applicant’s record and the former Soldier’s service did not warrant an honorable discharge.  

6.  The applicant requested a change to the narrative reason for separation.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides 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 identifies the SPD code of "JFL" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-40, Chapter 4-24B(3), for disability, severance pay.

7.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JFL" will be assigned an RE Code of 3.

8.  The applicant contends he was denied the Montgomery GI Bill because of this mistake; going back to school and completing a degree would greatly improve his situation. 
However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

9.  Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review	         Date:   21 August 2013         Location: Washington, DC

Did the Applicant Testify:  No

Counsel:  No

Board Vote:
Character  	Change: 0 	No Change:  5
Reason	Change:  0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:			No
Change Characterization to:		No Change
Change Reason to:				No Change
Change RE Code to:			No Change
Grade Restoration to:			NA	
Change Authority for Separation:		No Change
Other:						NA











Legend:
AMHRR - Army Military Human Resource Record	FG - Field Grade	IADT – Initial Active Duty Training	 	RE - Reentry
AWOL - Absent Without Leave	GD - General Discharge	NA - Not applicable	SCM- Summary Court Martial
BCD - Bad Conduct Discharge	HS - High School	NIF - Not in File	SPCM - Special Court Martial
CG - Company Grade Article 15	HD - Honorable Discharge	OAD - Ordered to Active Duty	UNC - Uncharacterized Discharge  
CID - Criminal investigation Department	MP – Military Police	OMPF - Official Military Personnel File	UOTHC - Under Other Than                           			               Honorable Conditions


ADRB Case Report and Directive (cont)		AR20130005013



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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