RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 September 2005
      DOCKET NUMBER:  AR20040009381


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. David S. Griffin              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Larry J. Olson                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the characterization of service
on his DD Form 214 (Certificate of Release or Discharge from Active Duty)
with a separation date 22 December 1986, be changed to honorable instead of
uncharacterized.

2.  The applicant states, in effect, that when he was discharged he was
told he was not getting an honorable discharge and that he would probably
get a general discharge.  He further states that he was told he would not
qualify for any veterans benefits.  He also states that the Department of
Veterans Affairs (DVA) records show that he has an honorable discharge.

3.  The applicant provides a copy of a letter from DVA, Regional Office,
Albuquerque, New Mexico, dated 15 October 2003, that states the records of
the DVA show that the applicant's character of discharge is honorable, as
verified to the DVA by military branch of service or shown on official
military documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred
on 22 December 1986.  The application submitted in this case is dated
12 October 2004.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's military records show that he enlisted on 21 August
1986 for a period of 3 years.  He entered basic training on 21 August 1986
at Fort Benning, Georgia.

4.  The applicant's records contain 14 General Counseling Forms for the
period from 27 September 1986 to 15 December 1986.

5.  These forms show that the applicant was continually counseled
concerning his continued inability to participate in training and taking
the Army Physical Readiness Test (APRT) due to his profile for his right
ankle.
6.  On 15 December 1986, the applicant's commander counseled him concerning
an entry level separation.  The commander stated that the applicant
continued to have problems with his feet and that the medical facility was
unable to correct the problems.  The commander further stated that the
applicant had been recycled once but still cannot meet the Army's Standards
for Physical Fitness.  The commander also stated that the applicant had
lost interest and had considered going absent without leave (AWOL) and that
an entry level separation would be in the best interest of the Army and the
Soldier.

7.  On 15 December 1986, the applicant's commander notified him that he was
initiating action to separate him from active duty under the provisions of
Chapter 11 of Army Regulation 635-200.

8.  The commander's letter advised the applicant of his right to consult
with military counsel or civilian counsel at no expense to the government;
to submit statements in his own behalf; to obtain copies of documents that
will be sent to the separation authority supporting the proposed
separation; to waive any of these rights; and to withdraw any waiver of
rights at any time prior to the date the discharge authority directs or
approves his discharge.

9.  The commander's letter further advised the applicant that, if approved,
he would receive an entry-level discharge with uncharacterized service.
The commander also advised the applicant that he would not be permitted to
reenlist in the United States Army for a period of two years from the date
of his separation, and then only with an approved waiver.

10.  On 15 December 1986, the applicant acknowledged receipt of the
notification of the recommendation for separation.

11.  In a memorandum, dated 15 December 1986, submitted through counsel,
the applicant acknowledged that he had been advised of the basis for the
contemplated action to separate him for Entry Status Performance and
Conduct. The applicant did not desire to submit a statement in his own
behalf, a separation medical to consult with military legal counsel, or to
consult with a civilian counsel retained at his own expense.  He requested
copies of documents to be sent to the separation authority supporting the
proposed separation.

12.  On 15 December 1986, the applicant's commander recommended that the
applicant be discharged due to his inability to meet Army standards for
physical fitness.  The commander stated that the applicant had been
recycled once, but due to his recurring problem with his feet he would be
unable in the future to meet Army standards.  The commander further stated
that the applicant had endured the problem to the point where he admitted
to considering going AWOL.
13.  On 17 December 1986, the appropriate authority approved the
recommendation for discharge of the applicant for discharge under the
provisions of Chapter 11 of Army Regulation 635-200.

14.  On 22 December 1986, the applicant was discharged under the provisions
of Chapter 11 of Army Regulation 635-200 due to entry level status
performance and conduct.  The applicant had completed 4 months and 2 days
of active service.

15.  There is no indication that the applicant applied to the Army
Discharge Review Board (ADRB) for an upgrade of his discharge within the
ADRB's 15-year statute of limitations.

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations) 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
separation policy applies to Soldiers who cannot meet the minimum standards
prescribed for successful completion of training because of lack of
aptitude, ability, motivation or self-discipline.  The regulation required
uncharacterized service for separation under this chapter.

17.  Paragraph 1-16b of Army Regulation 635-200 provides that when a
Soldier's conduct or performance becomes unacceptable, the commander will
ensure that a responsible official formally notifies the Soldier of their
deficiencies.  The regulation further provided that at least one formal
counseling was required before separation proceedings could be initiated
and that there must be evidence that Soldier's deficiencies continued after
the initial formal counseling.

18.  Paragraph 1-16c(1) of Army Regulation 635-200 provides that Soldiers
undergoing initial entry or other training will be recycled (reassigned
between training companies or, where this is not feasible, between training
platoons) at least once.
19.  Army Regulation 635-200 (Personnel Separations for Enlisted Personnel)
, in effect at the time, set forth the basic authority for the separation
of enlisted personnel.  This regulation defined entry-level status for
Regular Army soldiers, as the first 180 days of continuous active duty or
the first 180 days of continuous active duty following a break of more than
92 days of active military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should reflect his
characterization of service as honorable because the DVA records show his
discharge as honorable.

2.  The letter from DVA, Regional Office, Albuquerque is noted.  However,
the evidence in the applicant's military records does not support the
information contained in the letter.  The ABCMR does not change records to
comply with records kept by other agencies.

3.  The ABCMR does not correct records solely for the purpose of
establishing eligibility for employment or other benefits.

4.  The applicant received numerous formal counseling sessions concerning
his inability to participate in training.  The applicant was advised during
each of these counseling sessions that his continued failure to complete
training requirements could result in his being recycled to another unit.

5.  Records also show that the applicant was allowed to restart the
training program based on his inability to attend his required training.

6.  The applicant was still in an entry level status and therefore he
received an uncharacterized discharge in accordance with the regulation.

7.  There is no evidence that the applicant's counseling and subsequent
separation under the provisions of chapter 11 of Army Regulation 635-200
for entry-level performance and conduct was not in compliance with the
applicable regulation, in effect at the time.  There also is no indication
of procedural errors that would tend to jeopardize his rights.

8.  In the absence of evidence to the contrary, it is determined that all
requirements of law and regulations were met and the rights of the
applicant were fully protected throughout the separation process.  Further,
it is determined that the type of discharge and the reason for separation
were appropriate considering all the facts of the case.

9.  In order to justify correction of a military record the applicant must,
or it must otherwise satisfactorily appear, that the record is in error or
unjust.  The applicant has failed to submit evidence that would satisfy
that requirement.

10.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 December 1986 therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
21 December 1989.  The applicant did not file within the 3-year statute of
limitations and has not provided a compelling explanation or evidence to
show that it would be in the interest of justice to excuse failure to
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___jtm __  ____wdp_  ____ljo____  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  _________William D. Powers______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040009381                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050908                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]