IN THE CASE OF: BOARD DATE: 1 March 2016 DOCKET NUMBER: AR20150005650 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 received a medical discharge. 2. The applicant states he injured his shoulder while on active duty. The injury was the primary reason he was discharged. Until recently, he was unaware he could request a change to his discharge. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a 3-page document from the University of Massachusetts Disability Evaluation Services. In his application to this Board, he claimed to have provided evidence to support a shoulder injury incurred while on active duty; however, no evidence was provided. 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 Regular Army on 7 September 1982. 3. While training at Fort Jackson, South Carolina, the applicant was counseled on 13 January 1983 for failing the Army Physical Fitness Test (APFT). 4. The applicant was counseled on 1 February 1983 for failing the APFT for a second time. His record contains a DA Form 4856-R (General Counseling Form), which states the applicant did not want to re-take the APFT; however, he did want to be discharged because he could not do push-ups. The applicant concurred with the counseling. Part IV (Rehabilitation) of the aforementioned document is dated 9 February 1983 and notes the applicant was placed on remedial physical training with little to no improvement. The counselor stated that further action would be fruitless because the applicant did not want to be there and stated he could not do push-ups. 5. The applicant was counseled on 18 February 1983, wherein the counselor noted the applicant had not responded to remedial physical training or daily physical training. He had not shown any initiative to put forth extra effort to perform to minimum standards. It was noted the applicant was overweight and he stated that he had lost the desire to be productive because he saw his future service in the Army as "not easy." 6. His commander notified him on 18 February 1983 that she was initiating action to release him from active duty for transfer to the Individual Ready Reserve under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, due to entry level performance and conduct. The specific reasons for the proposed action were the applicant's inability to cope with the demands required to complete the training objectives in the unit and his inability to meet physical training standards. 7. The applicant acknowledged receipt of the separation notification memorandum on 18 February 1983. He stated he understood that, if approved, he would receive an uncharacterized, entry level separation. He elected not to consult with counsel and not to make any statements in his own behalf. He did not request a separation physical. 8. The applicant’s commander subsequently recommended the applicant’s discharge from service. The separation authority directed the applicant’s discharge from the service with an entry level separation and uncharacterized service. 9. The applicant was discharged accordingly on 3 March 1983, following his completion of 5 months and 27 days of net active service. The DD Form 214 he was issued at the time shows he was discharged under the provisions of Army Regulation 635-200, paragraph 11-3a, for entry level status performance and conduct – overweight, with uncharacterized service. He was not transferred to a unit of the U.S. Army Reserve. 10. The applicant's record is void of any evidence that shows he had an injury to his shoulder or any other medical condition that would have rendered him unable to perform his duties. 11. There is no indication in the applicant's records that he underwent a medical evaluation that resulted in referral to either a medical evaluation board (MEB) or physical evaluation board (PEB). 12. There is no evidence that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 13. The applicant provides a 3-page document from the University of Massachusetts Disability Evaluation Services, dated 26 December 2014, in which they determined he had a disability that was expected to last through 26 December 2015. There is no mention of a shoulder injury; however, it appears the applicant was the victim of an assault in July 2002 that resulted in a head injury and loss of consciousness. 14. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. : a. Chapter 3 states a separation will be described as entry level with uncharacterized service if the Soldier has less than 180 days of continuous active duty service at the time separation action is initiated. b. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. 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. d. Chapter 11 of the 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 applied to individuals who had demonstrated they were not qualified for retention because they: * could not adapt socially or emotionally to military life * lacked the aptitude, ability, motivation, or self-discipline for military service * demonstrated characteristics not compatible with satisfactory continued service e. 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. Separation under this chapter applied to Soldiers who were in an entry-level status (i.e., had completed no more than 180 days of continuous active duty before the date of the initiation of separation action). An uncharacterized description of service was required for separation under this chapter. 15. 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. 16. 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 Military Occupational Specialty (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 MOS-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. 17. 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. 18. 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 was carefully considered. 2. The evidence clearly shows the applicant did not responded to counseling, daily physical training, or the remedial physical training prescribed by his chain of command. Nor did the applicant show any initiative to put forth an extra effort to perform to the minimum acceptable standards. It was noted the applicant was overweight and he stated that he had lost the desire to be productive because service in the Army was "not easy." 3. His record is devoid of any evidence and he has not provided sufficient evidence of a shoulder 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 support changing his character of service or the reason for his discharge. 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) AR20150005650 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005650 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1