IN THE CASE OF:  	Mr. 

      BOARD DATE:  	27 September 2013

      CASE NUMBER:  	AR20130014324
___________________________________________________________________________

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 for separation to convenience of the government.

2.  The applicant states, in effect, that the Army made an error, either intentional or not, with his reason for being discharged.  According to his VA representative, he was discharged for an injury that occurred while in the Service.  The issue is that they stated that he had a preexisting condition that was aggravated when the injury occurred.  He never had any issues with his legs or any other limbs until he joined the Army and was injured.  When he asked his commander why he was being discharged he was told that it would take too long for him to heal because of his age and that he could return once healed.  This leads him to believe that the Army discharged him because of his age and injury, as a convenience.  He never asked to be discharged and wanted to stay and continue to do what he had set out to do and make a difference.  If there were any issues with his physical condition he would not have been able to join the Army.  His entrance paperwork will show that he was physically fit to join the Service and does not believe that it is fair to have been given a status of "uncharacterized" as a discharge reason.  

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	5 August 2013
	b.	Discharge Received:	Uncharacterized
	c.	Date of Discharge:	16 October 2008
	d.	Reason/Authority/SPD/RE Code:	Failed to Meet Procurement Medical Fitness 				Standards, AR 635-200, Paragraph 5-11, 				JFW, RE-3
	e.	Unit of assignment:	REH Hold Unit, 95th AG Bn, Fort Sill, OK
	f.	Current Enlistment Date/Term:	IADT 8 April 2008, 15 weeks
	g.	Current Enlistment Service:	6 months, 9 days
	h.	Total Service:	9 months, 3 days
	i.	Time Lost:	None
	j.	Previous Discharges:	USAR (080114-081016), NIF (Concurrent Service)
	k.	Highest Grade Achieved:	E-1
	l.	Military Occupational Specialty:	None
	m.	GT Score:	103
	n.	Education:	HS Graduate
	o.	Overseas Service:	None
	p.	Combat Service:	None
	q.	Decorations/Awards:	None
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	Yes
	u.	Prior Board Review:	No



SUMMARY OF SERVICE:		
	
The applicant enlisted in the Army Reserve on 14 January 2008 and was ordered to active duty for a period of 15 weeks for initial active duty training.  He was 39 years old at the time of entry and had a high school degree.  His record documents no acts of valor or significant achievements.  The applicant was attending basic combat training at Fort Sill, OK when his medical proceedings were initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 26 August 2008, an Entrance Physical Standards Board (EPSB) convened and determined the applicant was suffering from multiple stress fractures and osteopenia, which existed prior to his entry into the Army.  

2.  On 29 September 2008, the applicant reviewed and concurred with the findings of the EPSB and requested to be discharged from the Army without delay.  

3.  On 7 October 2008, the unit commander recommended separation from the Army under the provisions of Chapter 5, paragraph 5-11, AR 635-200, by reason of failure to meet procurement medical fitness standards with service described as uncharacterized.  

4.  On 8 October 2008, the separation authority directed the applicant’s discharge with service uncharacterized.    

5.  The applicant was discharged on 16 October 2008, for failing to meet medical physical procurement standards with a separation code of LFW and an RE code of 3.

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

The record contains one counseling statement dated 19 September 2008, in which the applicant was informed about his condition that existed prior to his entry into active duty and he concurred.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided no supporting documentation with his application.  

POST-SERVICE ACTIVITY: 

None were provided.


REGULATORY AUTHORITY:

1.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-11 specifically 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 entry on active duty or 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 six 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 AR 40-501, Chapter 3.  

2.  The characterization of service for Soldiers separated under this provision of the regulation will normally be honorable.  However for Soldiers in entry-level status, it will be uncharacterized.  

3.  Army Regulation 635-200 states that a Soldier is in entry-level status if the Soldier has not completed more than 180 days of creditable continuous active duty prior to the initiation of the separation action. 

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge was carefully considered.  However, after a careful review of all 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. 

2.  The proceedings of the Entrance Physical Standards Board (EPSB) revealed the applicant had a medical condition which was disqualifying for enlistment and that it existed prior to entry on active duty.  Subsequently, these findings were approved by competent medical authority.  

3.  The record confirms the applicant was in entry-level status.  A Soldier is in entry-level status (ELS) for the first 180 days of continuous active duty.  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.  Further, 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 applicant’s record indicates that no such unusual circumstances were present and his service did not warrant an honorable discharge.  

4.  All the requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  

5.  The applicant contends that the Army made a mistake as he did not have a preexisting condition.  He was healthy when he joined the Service and believes he was discriminated because of his age.  However, the record contains the proceedings of an Entrance Physical Standards Board that diagnosed the applicant with multiple stress fractures and osteopenia.  The board determined these conditions existed prior to his entry into active duty, approximately since 2008 and were aggravated by his service.  The applicant concurred with the board’s findings and requested to be discharged without delay.  

6.  The applicant also contends the discharge was unjust because he was discriminated because of his age.  However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discriminated.  The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.   

7.  Moreover, the record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.   The character of the applicant’s discharge is commensurate with his overall service record.  

8.  Finally, the applicant requested a change in the narrative reason for his discharge.  However, 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 "LFW" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 5, paragraph 5-11, for failure to meet procurement medical fitness standards.  The regulation further stipulates that no deviation is authorized.  

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



SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:   Records Review      Date:  27 September 2013     Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel:  Yes (redacted)

Witnesses/Observers: 	NA 

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 Authority for Separation:	NA
Change RE Code to:		NA
Grade Restoration to:		NA
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)		AR20130014324

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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