RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 March 2007
	DOCKET NUMBER:  AR20060011833 


	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.


	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 Dishonorable Discharge be upgraded.

2.  The applicant states, in effect, that his physical and mental abilities were inadequate due to sleep apnea, a knee injury, and complications of diabetes and tuberculosis. 

3.  The applicant did not provide additional documentary evidence in support of this application.    

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 18 May 1989, the date of his discharge from the Army.  The application submitted in this case is dated 23 June 2006, and received on
17 August 2006.

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.  On 8 March 1989, the applicant enlisted in the Regular Army for a period of three years.  

4.  While at basic combat training, the applicant was counseled on numerous occasions for his inability to achieve basic combat training standards, specifically his inability to successfully qualify on the M-16 rifle, a requirement to graduate.  After six failed attempts and unsuccessful retraining efforts, the applicant was recommended for an entry-level discharge.

5.  On 8 May 1989, the unit commander notified the applicant of initiation of separation action under the provisions of chapter 11 of Army Regulation 635-200 (Enlisted Personnel Separations) by reason of entry-level status, with an uncharacterized discharge.  The unit commander indicated that although the applicant was given extra training in all aspects of basic rifle marksmanship and six chances to qualify, he did not achieve the required standard.
6.  On 8 May 1989, the applicant consulted with legal counsel and did not submit a statement in his own behalf.

7.  On 15 May 1989, the separating authority waived rehabilitation transfer and directed the applicant be separated with an entry-level status discharge with service uncharacterized.

8.  On 18 May 1989, the applicant was discharged by reason of entry-level status after completing 2 months and 11 days of active military service.  His service was uncharacterized.

9.  There is no evidence in the applicant's service medical records to show he was treated for or diagnosed with sleep apnea, a knee injury, or complications of diabetes or tuberculosis.

10.  Army Regulation 635-200 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 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 could not 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.

11.  A Soldier is in entry-level status for the first 180 days of continuous active duty.  The purpose of the entry-level status is to provide the Soldier a probationary period.  Soldiers who are found to lack the necessary motivation, adaptability, self-discipline, ability, or attitude to become productive soldiers may be expeditiously separated while in entry-level status.  A fully honorable discharge may be granted only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.  

12.  Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

13.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant does not have a Dishonorable Discharge.  He was separated while in entry-level status because of his inability to qualify on his personal weapon, a requirement to graduate from basic combat training.  

2.  This type of discharge simply means that the applicant was in an entry-level status, i.e., in an initial probationary period of service.  Any individual who has served for less than 180 days at the time his or her commander initiated separation action, and is not being separated for serious misconduct, will be given an uncharacterized discharge.  This is not an adverse separation action and denotes only that the individual had less than 180 days on active duty.  

3.  A fully honorable discharge may be granted only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.  The Board determined that no such unusual circumstances were present in the applicant’s record and his service did not warrant an honorable discharge.

4.  A fully honorable discharge while in entry-level status may be granted only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.  The Board determined that no such unusual circumstances were present in the applicant’s record and his service did not warrant an honorable discharge.

5.  There is no evidence to support the applicant's contentions that his ability to perform was impaired by sleep apnea, a knee injury, or complications of diabetes or tuberculosis.

6.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.



7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 18 May 1989; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
17 May 1992.  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

__kan___  __lvd___  __dkh___  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.



						Kathleen A. Newman
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060011833
SUFFIX

RECON

DATE BOARDED
20070320
TYPE OF DISCHARGE
(UNCHAR)
DATE OF DISCHARGE
19890518
DISCHARGE AUTHORITY
AR 635-200, Chap 11
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.2400
2.

3.

4.

5.

6.