RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          28 September 2004
      DOCKET NUMBER:  AR2004101085


      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             |
|     |Ms. Rosa M. Chandler              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Ms. Karen Y. Fletcher             |     |Member               |
|     |Mr. Ronald E. Blakely             |     |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 that his General (sic) Discharge be upgraded to
an Honorable Discharge and, in effect, that his reentry (RE) code be
changed from RE-3 to RE-1.

2.  The applicant states that since being separated, he has been an
outstanding member of his community and he has not been involved in any
criminal activity.  He has been employed by the city of Detroit for the
past 15 years as a firefighter and paramedic and he believes his discharge
should be upgraded based on his post-service accomplishments of service to
the community.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 28 August 1986.  The application submitted in this case is
dated 21 November 2003.

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 limitation 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 available records show that, on 19 September 1985, the applicant
enlisted in the Delayed Entry Program (DEP).  On 10 July 1986, he was
discharged from the DEP and he enlisted in the Regular Army for 3 years and
training in military occupational specialty (MOS) 91A, Medical Specialist.
He never completed the training requirements for MOS 91A and he was never
awarded the MOS.

4.  While at Fort Bliss, Texas for basic training, the applicant was
counseled on ten occasions during July and August 1986 for failure to
follow instructions, lack of motivation, a negative attitude, failing the
diagnostic Army Physical Fitness Test, being out of uniform, a lack of self
discipline; poor appearance; an inability to adapt to military life; and
for unsatisfactory performance and conduct.

5.  On 13 August 1986, the unit commander counseled the applicant and
notified him of his intent to initiate separation action under the
provisions of chapter 11, Army Regulation 635-200 with an uncharacterized
discharge for entry level performance and conduct.  The applicant was
informed of his rights and the impact of the discharge action.  The unit
commander cited the bases for the recommendation was that the applicant was
not motivated for active duty service, he could not deal with the stresses
of a military environment, and he was not mature enough to accept
responsibility.  The unit commander believed that all attempts to help the
applicant had failed and that his continued resistance to conform to
military standards would lead to disciplinary action that would further
amplify his negative feelings toward the Army.  The commander also believed
the applicant would never become a competent, productive soldier because
rehabilitative efforts would not help him overcome his problems.

6.  On 17 August 1986, the applicant acknowledged notification and waived
legal representation.  He also declined to submit a statement in his own
behalf.  On 19 August 1986, the battalion commander also recommended
separation.

7.  On 21 August 1986, the approval authority waived further rehabilitative
efforts and directed that the applicant be separated with an
uncharacterized discharge.

8.  The applicant's DD Form 214 (Certificate of Release or Discharge from
Active Duty) shows that, on 28 August 1986, he was separated under the
provisions of chapter 11, Army Regulation 635-200, due to entry-level
status performance and conduct.  It also incorrectly shows the applicant
had completed 8 months and
28 days of net service this period.  In fact, he only completed 1 month and
19 days of active service.  He was assigned an RE Code of RE-3.

9.  Pertinent Army regulations provide that, prior to discharge or release
from active duty, individuals will be assigned RE codes based on their
service records or the reason for discharge.  Army Regulation 601-210
covers eligibility criteria, policies, and procedures for enlisting and
processing into the RA and the eligibility for prior service applicants for
enlistment.  That chapter includes a list of Armed Forces RE codes and RA
RE codes.  A code of RE-3 applies to persons not qualified for continued
Army service; however, the disqualification is waivable.  Local recruiting
personnel have the responsibility for determining whether an individual
meets current enlistment criteria and are required to process a request for
waiver.  There is no evidence that the applicant has ever requested such a
waiver.

10.  The available evidence does not show the applicant has ever applied to
the Army Discharge Review Board (ADRB) for an upgrade of his discharge
within the ADRB's 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 11 of that regulation provides
for the separation of personnel during the initial 180 days of service
while still in an entry-level status.  The policy applies to soldiers who
have demonstrated that they are not qualified for retention because they
cannot meet the minimum standards prescribed for successful completion of
training because of lack of aptitude, ability, motivation or self-
discipline.  These Soldiers are separated with an uncharacterized discharge
under the provisions of chapter 11, by reason of entry-level status
performance and conduct.  Only in certain meritorious cases approved by the
Secretary of the Army are they entitled to an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The available records show the applicant was discharged under the
provisions of chapter 11, Army Regulation 635-200, due to entry-level
performance and conduct.  His records show he was counseled for lack of
motivation, failure to adapt to military life, and for unsatisfactory
performance and conduct.  He was also informed of the consequences of being
separated under the provisions of chapter 11 with an uncharacterized
discharge.

2.  The available evidence clearly demonstrates the applicant was in an
entry level status and that his performance and conduct failed to meet Army
standards. Therefore, separation under the provisions of chapter 11 was
appropriate.


3.  There is no basis for removal or waiver of the disqualification that
established the basis for the applicant’s RE code.  The assigned RE code
was, and still is, appropriate.

4.  The applicant may request that this Board correct his DD Form 214 to
show his net active service between 10 July and 28 August 1986 equals 1
month and 19 days.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 August 1986; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 27 August 1989.  However, 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

__fe____  __kyf___  __reb___  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.



                                  Fred Eichorn
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004101085                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040928                                |
|TYPE OF DISCHARGE       |(UNCHAR)                                |
|DATE OF DISCHARGE       |19860828                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 11                      |
|DISCHARGE REASON        |A29.00                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.2900                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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