BOARD DATE: 11 February 2016 DOCKET NUMBER: AR20150005884 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 that his uncharacterized discharge be upgraded to a disability discharge. 2. The applicant states: a. His discharge was classified as entry level performance and conduct. While he was on active duty he was severely injured. Both of his knees were injured due to an accident and he was unable to perform his duties properly as a Soldier. He sent copies of his military records and doctor visits to prove his injuries occurred on active duty. b. At the time of his discharge he was 19 years old. He was naïve and did not understand his rights. His discharge was not explained to him correctly. He continued to have issues with his knees after his discharge. In December 2009, he filed a claim with the Department of Veteran Affairs (VA) for compensation for his injuries. In November 2011, he was granted 20 percent service-connected disability for his knees. He should have received a medical discharge when he was released in 1996. c. He wanted to be the best Soldier he could be; however, his military career was cut short do to his service-connected disability. If he was aware of his rights he would have fought for a medical discharge from the beginning. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * military medical records * civilian medical records * VA rating decision 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 22 July 1996. 3. A DA Form 3822-R (Report of Mental Status Evaluation), dated 9 August 1996, shows a clinical social worker found the applicant to meet retention standards and to have no psychiatric disease or defect warranting disposition through medical channels. The applicant was psychiatrically cleared for any administrative action deemed appropriate by command. 4. The applicant's records also show he received developmental counseling statements during the period 16 August to 28 August 1996 for the following reasons: * once for disobeying a lawful order * twice for failure to follow instructions * twice for lack of motivation and failure to adapt 5. Page two (Session Closing) of his DA Forms 4856 (Developmental Counseling Form) show that he agreed with all of his counseling sessions and did not mention any injuries in response to the counseling. 6. In a memorandum dated 29 August 1996, the applicant’s battalion chaplain stated: a. He had counseled the applicant concerning his emotional and mental difficulty in adapting to the military life of the U.S. Army. b. He expressed his desire to be removed from the U.S. Army. He believed the stress was too excessive and he did not desire to adjust. He felt that the military was overbearing and too controlling. He felt his enlistment was a mistake and he had joined for the wrong reasons. c. He admitted to having been to psychological therapy prior to entering the service. The stressful environment of basic training was invoking the issues and emotions he had been counseled on previously. He felt anger towards his parents, the Drill Sergeants, and himself. d. He continued to perform more poorly in his duties each day. His coping skills were at a minimum. He had neither the desire nor the determination to fulfill his military obligation. He showed very few coping skills during the counseling session. He was not able to think that there were other answers for him. e. In considering the applicant’s emotional and mental state, the chaplain did not feel that he had any potential for military service and that he would continue to drain on his peers, the battery, and the U.S. Army if he was retained on active duty. 7. On 4 September 1996, his commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, due to entry-level performance and conduct. The commander cited the applicant's failure to adapt emotionally as the specific reason for his proposed action. 8. On the same day, the applicant acknowledged receipt of the proposed action against him and waived his right to legal counsel. He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights. Subsequent to receiving this counseling, the applicant completed his election of rights by waiving his right to have his case considered by an administrative separation board and declined to submit statements in his own behalf. The applicant declined to have a separation medical examination. 9. On 12 September 1996, an authorized official approved the waiver of the applicant's rehabilitative transfer and his discharge under the provisions of Army Regulation 635-200, chapter 11, and directed that he be given an entry-level separation. 10. On 18 September 1996, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 11, by reason of entry-level status performance and conduct with an uncharacterized discharge. The DD Form 214 he was issued shows he held the rank of private/E-1 and completed a total of 1 month and 27 days of active military service. 11. He submitted nine pages of military medical records which show: * 26 July 1996 - complained of having knee pain, he was treated and released * 29 July 1996 - treated for thumb and knee pain, profiled, treated and released * 5 August 1996 – treated for knee pain, treated and released * 8 August 1996 – radiologic report found his knees were normal * 19 August 1996 – complained of knee pain, treated, profiled, and released * 21August 1996 – complained of feet and knee pain, treated and returned to duty 12. He provides a letter from the VA and a VA rating decision, dated 9 November 2011. The rating shows the applicant was awarded service-connection for patellofemoral pain syndrome, left and right knee, and awarded a disability rating of 20 percent. The letter from VA states the disability rating was effective 1 January 2010. 13. Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel. Chapter 11 provides the policies and procedures for separating individuals who are in an entry-level status (180 days or less) who cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline. It provides that service under this provision will be uncharacterized unless the Secretary of the Army determines that a characterization of honorable is warranted by unusual circumstances involving personal conduct and performance of duty. 14. Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. It states the medical treatment facility commander with primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEB). Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty. Discharge for disability may only be accomplished through the disability evaluation system. DISCUSSION AND CONCLUSIONS: 1. There is no evidence in the record and the applicant failed to provide evidence that shows he had any medical conditions while on active duty that would have warranted consideration by an MEB or a PEB. The fact that the VA awarded him a service-connected disability rating is not evidence of the presence of a disabling condition during his military service. The VA may award ratings because a medical condition was related to military service (service-connected) and now affects the individual's civilian employability. 2. The evidence shows that he performed poorly in basic training. His poor performance was attributed to the lack of motivation and failure to adapt. He complained of and was treated for knee pain on several occasions; however, examining medical providers found that his knees were normal. 3. There is no evidence of error in the reason and authority for his separation. 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) AR20150005884 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005884 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1