MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 22 August 2002
         DOCKET NUMBER: AR2002074464

         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.

Mr. Carl W. S. Chun		Director
M .		Analyst

The following members, a quorum, were present:

Ms. JoAnn H. Langston		Chairperson
Mr. Raymond V. O’Connor, Jr.		Member
Ms. Barbara J. Lutz		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)

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APPLICANT REQUESTS: That the characterization of his discharge be changed from uncharacterized to honorable.

APPLICANT STATES: In effect, that he should have been sent for retraining as it was recommended. His discharge should be upgraded so he may keep the benefits of an honorably discharged soldier. He notes on his DD Form 149 that an Enclosure 2, orders 351-38, a form from Sergeant C___, and a document from Captain S___ are provided as supporting evidence; however, only the applicant’s Certificate of Release or Discharge from Active Duty, DD Form 214, and his discharge packet were attached.

EVIDENCE OF RECORD: The applicant's military records show:

He was born on 4 March 1954. His enlistment contract is not available but an Army Discharge Review Board (ADRB) action shows he had 60 semester hours of college and he enlisted in the U. S. Army Reserve (USAR) on 23 April 1988 in pay grade E-3 for training in military occupational specialty (MOS) 75B (Personnel Administration Specialist) and for the Student Loan Repayment Program.

The applicant was ordered to initial active duty for training on 22 July 1988. He completed basic training and was assigned to Fort Benjamin Harrison, IN for 75B training.

A General Counseling Form, DA Form 4856, shows that the applicant was counseled on 11 October 1988. It noted that on 5 October 1988 he had failed the initial test on Pay Related Documents. It noted that on 11 October 1988 he was given reinforcement training and retested on Pay Related Documents. He again failed the areas in which he was retested. He was informed he would be New-Started (i.e., recycled) prior to being administered a third test. He was advised that failure of the test could result in his being eliminated from the course.

On 19 October 1988, the applicant was New-Started into a new class.

A DA Form 4856 dated 2 November 1998 shows the applicant was counseled for not meeting course standards on 27 October 1988 in taking a test on (preparation of a) memorandum. The DA Form 4856 noted that the applicant did demonstrate a good attitude, sometimes he took notes (“yes/no”), he did not pay attention in class, he did not have good study habits, and he did ask questions of the instructor. The counselor informed the applicant he was recommending the applicant be eliminated from the course.

A DA Form 4856 dated 8 November 1988 shows that the applicant was counseled by the USAR coordinator. The DA Form 4856 noted that it was the coordinator’s opinion that the applicant had the motivation and potential to successfully complete training in an alternate MOS and recommended he be retained in the service and trained in MOS 88M (Motor Transport Operator). The coordinator referenced Training and Doctrine Command (TRADOC) Pamphlet 600-5, (paragraphs 3 and 4), TRADOC message 142006Z, October 83 (paragraphs 2 and 4), and TRADOC message 041640Z, November 1983.

A DA Form 4856 dated 10 November 1988 shows that the applicant was counseled on 9 November 1988 for failing the SIDPERS Input test. This DA Form 4856 noted that the applicant did not demonstrate a good attitude, did not pay attention in class, did not have good study habits, and did not ask questions of the instructor. It was noted that a failure to pass a retest in the areas he failed would result in some form of administrative action being taken against him.

A Student Disposition form, FBH Form 30-2-37, dated 14 November 1988 shows that the applicant was recommended for academic elimination but recommended that he be retained in the Army to be retrained in an alternate MOS.

A DA Form 4856 dated 28 November 1998 shows that the applicant was counseled that date regarding his elimination from the 75B course because he showed little desire to be a good soldier, that he did the minimum it took to get by, and that he was being recommended for discharge from the service.

On 5 December 1988, 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 recommendation noted that the applicant’s performance and attitude were unsatisfactory, he failed the 75B course, and he did not warrant retention. It noted rehabilitation attempts as the applicant’s New-Start in October 1988. It noted that the applicant had been a marginal soldier throughout his initial entry training and had not displayed the motivation to successfully complete training.

The applicant was advised by consulting counsel of the basis for the contemplated separation action. He submitted a statement in his own behalf but it is largely illegible.

On 8 December 1988, counsel for the applicant indicated that, although a record of counseling was included in the separation packet, it failed to comply with the requirements of Army Regulation 635-200, paragraph 1-18.

On 12 December 1988, the applicant’s commander noted that TRADOC guidance required that only exceptional soldiers could be retained in the service for retraining in an alternate MOS. There was no evidence of exceptional performance by the applicant that warranted retention.

On 13 December 1988, counsel for the applicant indicated that there was nothing in the separation packet to indicate that proper written counseling had taken place. Army Regulation 635-200, paragraph 1-18 required a commander ensure adequate counseling and rehabilitative measures be taken before initiating actions to separate soldiers. The counseling must take place at least once prior to initiating separation action and must be in writing.

A DA Form 4856 dated 16 December 1988 indicates that the applicant was counseled by an E-9 (title or position not listed). The DA Form 4856 noted that the elimination packet did not meet the minimum standards of Army Regulation 635-200, that the E-9 nonconcurred with the applicant’s elimination, that the applicant’s USAR parent unit had need of an 88M, and the E-9 recommended the applicant be trained as an 88M.

On 20 December 1988, the applicant’s commander responded to his counsel’s contentions regarding written counseling by providing the DA Forms 4856 dated 11 and 27 October and 9 November 1988 described above.

On 23 December 1988, the Acting Staff Judge Advocate (SJA) opined that the counseling and rehabilitative requirements had been satisfied and there was no legal objection to taking final action on the applicant’s separation packet. While the counseling failed to advise the applicant of the possible adverse characterization of discharge as usually required, such counseling was not deemed necessary for separation under the provisions of Army Regulation 635-200, chapter 11 as such separation is uncharacterized. Therefore, no adverse characterization of discharge could result. The Acting SJA also noted that further rehabilitation was waivable.

The brigade-level commander waived rehabilitative efforts and approved the applicant’s release from active duty with an uncharacterized discharge.

On 27 December 1988, the applicant was released from active duty under the provisions of Army Regulation 635-200, chapter 11, for entry-level performance and conduct. His character of service was uncharacterized. He had completed 5 months and 6 days of creditable active service.

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.

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. Before initiating separation action, commanders will ensure that the soldier receives adequate counseling and rehabilitation in accordance with chapter 1, section II. A responsible person will counsel the soldier about his or her deficiencies at least once before initiating separation action. Additional formal counseling is discretionary. The counseling will be conducted per Army Regulation 350-21 (Instructions in Benefits of an Honorable Discharge). It will be comprehensive and will include at least the reason for counseling, that separation action may be initiated if the behavior continues, and the type of discharge that could result form the possible separation action and the effect of each type. Replacement stream soldiers will be recycled (rehabilitated) at least once. The requirement for a rehabilitative transfer may be waived by the separation authority. 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.)

Efforts to obtain copies of TRADOC Pamphlet 600-5 (which was rescinded in July 1995) and TRADOC messages 142006Z October 83 and 041640Z November 1983 were not successful.

On 12 November 1997, the ADRB denied the applicant's request to change the description of his service from uncharacterized.

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 this requirement.

2. 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 lack of aptitude, ability, motivation or self-discipline. There was ample evidence, in the form of DA Forms 4856, to show the applicant could not meet the minimums standards for successful completion of 75B training. The DA Forms 4856 showed that the regulatory counseling requirement was met. His command met the rehabilitative requirement by recycling him once.

3. While the staff of the Board could not obtain copies of the referenced TRADOC Pamphlet and messages, on 12 December 1988 the applicant’s commander noted that TRADOC guidance required that only exceptional soldiers could be retained in the service for retraining in an alternate MOS and that there was no evidence of exceptional performance by the applicant that warranted retention. It is noted that the E-9 who completed the DA Form 4856 dated 16 December 1988 nonconcurring with the applicant’s elimination and recommending that he be trained as an 88M did not provide a rebuttal to the commander’s note. In the absence of evidence to the contrary, the Board agrees with the commander’s contention that retention was not warranted.

4. It is acknowledged that some Department of Veterans Affairs benefits and other benefits are dependent upon the type of discharge awarded and/or the length of service (total service and/or active duty service). However, the uncharacterized discharge directed and the reasons therefor were appropriate considering all the facts of this case. An uncharacterized discharge 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.

5. 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

__JHL __ __ RVO _ __BJL __ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002074464
SUFFIX
RECON
DATE BOARDED	2002/08/22
TYPE OF DISCHARGE	UNCHAR
DATE OF DISCHARGE	1988/12/27
DISCHARGE AUTHORITY	AR 635-200, ch 11
DISCHARGE REASON	A25.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.