BOARD DATE: 7 September 2017 DOCKET NUMBER: AR20160002789 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ____x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 7 September 2017 DOCKET NUMBER: AR20160002789 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 7 September 2017 DOCKET NUMBER: AR20160002789 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 correction of her discharge under other than honorable conditions (UOTHC) to an entry-level separation or uncharacterized. 2. The applicant states, in effect, she incurred a service-connected injury during basic training. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) medical records 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 U.S. Army Reserve (USAR) on 9 November 1999 for a period of 8 years. She was ordered to initial active duty for training on 4 January 2000. 3. She provided a VA medical record showing she underwent surgery for a femoral neck fracture (the region connecting the shaft of the thigh bone (femur) to its rounded head, which fits into the hip joint) on 27 March 2000. 4. She was absent without leave (AWOL) from 16 May 2000 until she was apprehended on 29 August 2000 and returned to military authorities. On 8 September 2000, charges were preferred against her for the AWOL period. 5. On 8 September 2000, she consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. She acknowledged that by submitting her request for discharge, she was guilty of a charge against her that authorized the imposition of a bad conduct or dishonorable discharge. She indicated she understood she might be discharged under conditions other than honorable and given a discharge UOTHC, she might be ineligible for many or all benefits administered by the VA, she might be deprived of many or all Army benefits, and she might be ineligible for many or all benefits as a veteran under both Federal and State laws. She acknowledged she might expect to encounter substantial prejudice in civilian life because of a discharge UOTHC. She elected to make a statement in her own behalf; however, her statement is not available for review. 6. She was placed on excess leave on 9 September 2000. 7. Item 11 (Medical or Other Data Meriting Consideration in the Medical Evaluation) of her U.S. Army Armor Center (ATZK-PM) Form 4939 (Characterization of Service Checklist for Administrative Discharge Actions), dated 16 November 2001, shows the entry "None." 8. On 17 December 2001, the separation authority approved her voluntary request for discharge and directed the issuance of a discharge UOTHC. 9. On 15 January 2002, she was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. She completed 1 year, 8 months, and 27 days of creditable active service during this period with 150 days of lost time and 494 days of excess leave. Her service was characterized as UOTHC. 10. She provided an operation report, dated 11 June 2004, showing she underwent right hip surgery on 11 June 2004 for implantation of a dynamic hip screw. The report states she suffered a basocervical femoral neck stress fracture diagnosed on magnetic resonance imaging during basic training. REFERENCES: 1. Army Regulation 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Paragraph 2-11 (Miscellaneous Conditions of the Extremities) states the following fractures are disqualifying medical conditions: a. current malunion or non-union of any fracture (except asymptomatic ulnar styloid process fracture) and b. current retained hardware that is symptomatic, interferes with proper wearing of protective equipment or military uniform, and/or is subject to easy trauma. Retained hardware (including plates, pins, rods, wires, or screws used for fixation) is not disqualifying if fractures are healed, ligaments are stable, there is no pain, and it is not subject to easy trauma. 2. Army Regulation 600-8-10 (Leaves and Passes) prescribes the policies and mandated operating tasks for the leave and pass function of the Military Personnel System. Excess leave is a nonchargeable absence granted for emergencies or unusual circumstances or as otherwise specified in this regulation. Soldiers awaiting completion of administrative discharge proceedings may request an indefinite period of excess leave. Soldiers granted excess leave while awaiting administrative discharge are charged ordinary leave until accrued leave is exhausted. 3. Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. a. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate. b. For Army National Guard and USAR Soldiers, entry-level status begins upon enlistment in the Army National Guard or USAR. For Soldiers ordered to inactive duty training for one continuous period, it terminates 180 days after beginning training. For Soldiers ordered to inactive duty training for the split or alternate training option, it terminates 90 days after beginning Phase II advanced individual training. DISCUSSION: 1. The applicant contends her discharge UOTHC should be changed to entry-level separation with uncharacterized service due to her service-connected injury. However, there is no evidence and she provided no evidence showing she suffered a medical condition that rendered her unable to perform her military duties. It appears she failed to return to duty following convalescence leave from surgery for a femoral neck fracture in March 2000, which resulted in an AWOL period. 2. The governing regulation states a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in an entry-level status. The applicant was not in an entry-level status when charges were preferred against her on 8 September 2000. 3. Her voluntary request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations. 4. Her record of service included 150 days of lost time due to AWOL and 494 days of excess leave. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002789 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002789 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2