IN THE CASE OF: BOARD DATE: 3 March 2009 DOCKET NUMBER: AR20080010743 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, a change in the characterization of his discharge or change the reason of his discharge to a medical discharge. 2. The applicant states that he severely injured his ankles which led to his inability to fulfill military occupational specialty (MOS) 11B (Infantryman) requirements. He was placed on light duty after hospitalization with continued Kryo-Temp therapy. However, his therapy was discontinued by his superiors who forced him to participate in a 25-mile road march and company runs. This exacerbated his injuries which ultimately led to a service-connected disability rating by the Department of Veterans Affairs (VA). 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 16 November 1983; a copy of a letter, dated 13 February 2009, from the National Personnel Records Center; a copy of the VA rating decision, dated 29 December 2005; and a letter, dated 19 January 2006, from the VA certifying his service-connected disability rating in support of his request. 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’s military records are not available to the Board for review. However, there are sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case. 3. The applicant’s DD Form 214 shows he enlisted in the Regular Army on 23 August 1983. This form also shows that at the time of separation, he was assigned to Company C, 3rd Battalion, 1st Infantry Training Brigade, U.S. Army Infantry Center, Fort Benning, GA. 4. The facts and circumstances surrounding the applicant’s discharge are not available for review with this case. However, his DD Form 214 shows he was discharged on 16 November 1983 in accordance with the provisions of what appears to be paragraph 11-3a of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). This form also shows he completed 2 months and 22 days of active military service. Item 24 (Character of Service) of this form shows he received an uncharacterized character of service, item 25 (Separation Authority) shows the entry "Para[graph] 11-3a, A[rmy] R[egulation] 635-200," item 26 (Separation Code) shows the entry "JGA," and item 28 (Narrative Reason for Separation) shows the entry "entry level status-unsatisfactory performance and conduct." 5. The applicant’s medical records are not available for review with this case. 6. The applicant submitted a copy of his VA rating decision, dated 29 December 2005 that shows he is receiving a monthly compensation for a service-connected disability. 7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 11, of this regulation, in effect at the time, provided, for the separation of personnel due to unsatisfactory performance, conduct, or both, while in an entry level status. This provision of the 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 that they had demonstrated characteristics not compatible with satisfactory continued service. The regulation states that 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. The Soldier’s service is uncharacterized when separated under this chapter. 8. Army Regulation 635-200, paragraph 3-9 (Uncharacterized separations), provides, in pertinent part, that a separation will be described as an entry level separation with service uncharacterized, if processing is initiated while a Soldier is in entry level status. 9. Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, or rating and the conditions must have been incurred while entitled to base pay. 10. Army Regulation 635-40 (Physical Evaluation, for Retention, Retirement, or Separation), governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. In pertinent part, it states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. It states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. 11. Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons. The regulation in effect at the time, states the reason for discharge based on separation code “JGA” is “Entry level status performance and conduct or entry level status performance - pregnancy” and the regulatory authority is Army Regulation 635-200, chapter 11, paragraph 11-3a or b. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that the characterization of his discharge should be changed or the reason of his discharge to a medical discharge. 2. With respect to the applicant’s uncharacterized discharge, by regulation, a separation is described as an entry level separation with service uncharacterized, if processing is initiated while a Soldier is in entry level status (i.e., less than 180 days from the beginning of initial active duty training). The evidence of record shows that the applicant was discharged from active duty while still in training and was credited with 2 months and 22 days (i.e., 88 days) net active service during this period. Thus, the applicant clearly was in an entry level status and his character of service is correctly recorded as uncharacterized on his DD Form 214. Therefore, the applicant is not entitled to correction of the character of service recorded on his discharge document. 3. With respect to any a medical discharge, the applicant’s record is void of the facts and circumstances surrounding his discharge. Furthermore, there is no evidence in the available record and the applicant did not provide any substantiating evidence that shows he suffered an injury that led to his discharge. Additionally, his service medical records are not available, and there is no other evidence to show he was treated while in the Army for an ankle or for any other medical condition. There is no evidence of record available to show that his service was interrupted because he was medically unfit due to those conditions and no evidence of record to show that those conditions resulted in his inability to learn and/or in his unsatisfactory performance. 4. In the absence of evidence to the contrary, it is presumed that the narrative reason for the applicant’s separation was appropriately assigned based on the authority for his discharge. 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 this requirement. In view of the foregoing, there is no basis for granting the applicant's request. 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. XXX ______________________ 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) AR20080010743 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080010743 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1