MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 May 2000                   
	DOCKET NUMBER:   AR2000035547

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. Thomas B. Redfern, III		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his uncharacterized discharge be changed to an honorable discharge.

APPLICANT STATES:  That an “uncharacterized” discharge is stigmatizing to any recruit.  He was never given a medical profile.  The provided medical evaluation shows that had he been properly diagnosed and treated his condition would have been shortened by several weeks.  Army Regulation 635-200, chapter 2, part IV section A was violated when he did not receive the therapy and consultation he to which he was entitled.

COUNSEL CONTENDS:  That while the counseling conducted was adequate, no efforts were made at rehabilitation.  The Board should carefully consider the letter from Dr. Kelty stating that had the applicant’s shoulder injury been properly diagnosed and treated while in service, the time frame for his recovery would have been considerably shorter.  Counsel realizes that honorable discharges are only awarded for unusual situations when the soldier has less than 180 days of service; however, he feels this is an unusual situation.

EVIDENCE OF RECORD:  The applicant's military records are not available.  The information contained herein was obtained from documents provided by the applicant and from the Army Discharge Review Board’s (ADRB) 9 December 1998 reconsideration of his case.

The applicant enlisted in the Regular Army on 17 August 1993.  

On 12 November 1993, separation action on the applicant under the provisions of Army Regulation 635-200, chapter 11 for entry-level status performance and conduct was initiated.  The ADRB case notes that counseling statements were available regarding his failure of the Army Physical Fitness Test (APFT) but that no shoulder condition was mentioned as the reason for his failure.  The applicant was advised of his rights, he acknowledged notification and submitted a statement on his own behalf.  In his statement he stated, in effect, that he could not pass the APFT and that it would be beneficial for all parties concerned to continue his processing under chapter 11.  On 7 December 1993, the appropriate commander waived further rehabilitative efforts and approved his discharge with an uncharacterized discharge.  

On 10 December 1993, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 11, for entry-level performance and conduct.  His character of service was uncharacterized and his re-entry code was 3.  He had completed 3 months and 24 days of creditable active service.

The applicant provides a letter from a chiropractor who treated him after his discharge.  The chiropractor stated that the applicant was diagnosed with bicipital tendonitis and sprain of the acromioclavicular joint.  Treatment was initiated on 20 December 1993 and concluded on 9 February 1994.  It was the chiropractor’s opinion that had the applicant’s condition been treated in the beginning, the time frame for his recovery would have been shortened by several weeks.  

Army Regulation 635-200, Chapter 11 sets the policy and prescribes procedures for separating members who were voluntarily enlisted in the Regular Army, National Guard or Army Reserve, are in an entry level status and, before the date of the initiation of separation action, have completed no more than 180 days of creditable continuous service, and have demonstrated that they are not qualified for retention.  The following conditions are illustrations of conduct that does not qualify for retention:  cannot or will not adapt socially or emotionally to military life; cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline; or have demonstrated character and behavior characteristics not compatible with satisfactory continued service.  Before initiating separation action, commanders will ensure that the soldier receives adequate counseling and rehabilitation in accordance with chapter 1, section II.  Unless the reason for separation requires a specific characterization, a soldier will be awarded an uncharacterized description of service if in an entry-level status.  (For Regular Army soldiers, entry level status is the first 180 days of continuous active duty.)

Army Regulation 635-200, paragraph 1-18 states that when a soldier’s conduct or performance approaches the point where a continuation of such conduct or performance would warrant initiation of separation action, he or she will be counseled about his or her deficiencies at least once before initiating separation action.  Additional formal counseling is discretionary.  Replacement stream soldiers will be recycled (rehabilitated) at least once.  The requirement for a rehabilitative transfer may be waived by the separation authority.

Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies and procedures for enlistment and processing into the Regular Army  (RA) and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waiverable.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  In the absence of evidence to the contrary, it is presumed the applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  A chapter 11 discharge is used for entry-level soldiers not qualified for retention for one of several reasons, including if they cannot meet the minimum standards prescribed for successful completion of training because of a lack of ability.  Failure to pass the APFT is considered a lack of ability whatever the reason for the failure.  If it was his shoulder condition, of which there was no mention in his military records, it was not a requirement to give him a physical profile prior to initiating separation action.  

3.  The Board is not sure what the applicant is referring to when he states that Army Regulation 635-200, chapter 2, part IV section A was violated when he did not receive the therapy and consultation to which he was entitled.  Chapter 2, section IV concerns “Additional Provisions Concerning Absent Soldiers.”  If by “therapy and consultation” the applicant means “counseling and rehabilitation,” then the Board concludes the requirements of the regulation were met.  The ADRB’s case noted there were counseling statements in the applicant’s discharge packet.  “Rehabilitation” does not refer to medical rehabilitation.  It refers to conduct or performance rehabilitation.  The Board concludes that the rehabilitation requirement was properly waived because the chain of command believed his recycle to another basic training unit would not have changed his inability to pass the APFT.  

4.  The Board does not agree with counsel’s contention that it was the Army’s misdiagnosis and lack of treatment that led to the applicant’s discharge.  The chiropractor’s statement noted that had the condition been treated in the beginning, the time frame for his recovery would have been shortened by several weeks.  “Several weeks” may have brought down the recovery time from 7 weeks to 4 weeks.  This is not a reasonable time period in basic training.  The Board concludes that even had the Army performed to the applicant’s expectations, separation under chapter 11 would still have been appropriate.

5.  The uncharacterized discharge directed and the reasons therefor were appropriate considering all the facts of the case.  An uncharacterized discharge is not meant to be a negative reflection of a soldier’s military service.  It merely means that the soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise.

6.  An uncharacterized discharge would not prevent the applicant from reenlisting in the Army.  He received a re-entry code of 3, which is a waiverable disqualification.  If the chiropractor healed his shoulder and he feels fit enough, he may request a waiver to reenlist.  Recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria.  They are required to process a request for waiver under the provisions of Chapter 4, Army Regulation 601-210, Regular Army and Army Reserve Enlistment Program. 

7.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__mkp___  __gdp___  __tbr___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR2000035547	
SUFFIX		
RECON		
DATE BOARDED	20000510	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.