RECORD OF PROCEEDINGS


	IN THE CASE OF:	 


	BOARD DATE:	  6 September 2007
	DOCKET NUMBER:  AR20070003958 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Antoinette Farley

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Frank C. Jones, II

Member

Ms. Carmen Duncan

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, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to change his uncharacterized discharge to an honorable discharge.

2.  The applicant states, in effect, that he was discharged with an uncharacterized discharge on 29 July 1988.  The applicant continues that he received an honorable discharge certificate on 11 December 1992, after completion of his obligation of service in the Individual Ready Reserve (IRR). 

3.  The applicant continues that he discovered the error after being asked for a copy of his DD Form 214.  The applicant continues that the error on his DD Form 214 caused him difficulties in obtaining employment.

4.  The applicant provides a copy of his honorable discharge certificate, dated 11 December 1992 in support of this application.

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's military record shows that he entered the Regular Army on 21 January 1988.  The applicant's record shows he did not complete his military training and was not awarded a military occupational specialty (MOS).

3.  A DA Form 3349 (Physical Profile), dated 2 May 1988, shows the applicant was diagnosed with trochanteric bursitis left hip pain.  [A physical profile provides an index to the overall functional capacity of a Soldier and is used to assist the unit commander and personnel officer in their determination of what duty assignments the Soldier is capable of performing, and if reclassification action is warranted.]  The medical corps officer awarded the applicant a temporary profile of 11311 with numerous restrictions.  This form also shows the applicant was receiving physical therapy treatment daily until 18 May 1998.

4.  The applicant's record shows he received a DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 8 May 1988, for failure to obey policy.

5.  The applicant's record contains several DA Forms 4856 (General Counseling Form) which show he was counseled for failure to be at his appointed place of duty at the appointed time on 16 May 1988; for failure to meet Army Physical Requirements on 3 June 1988; and failing room inspection on 12 June 1988.

6.  A DA Form 4856-R (Developmental Counseling Form), dated 17 June 1988, shows the applicant was counseled on the consequences of continued unsatisfactory conduct/performance and was told that this type of conduct would not be allowed to continue and any further problems could lead to the initiation of an entry level separation-uncharacterized, in accordance with chapter 11 of Army Regulation 635-200.  Part II (Summary of Counseling) of this form shows the applicant agreed with the counseling and authenticated this form with his signature.

7.  On 28 June 1988, the applicant provided a statement in which he states that he desperately needs a discharge which could affect the rest of his life.   

8.  A USAISD Form (Notification of Academic disenrollment (Enlisted), dated 29 June 1988, shows that the applicant's commander recommended that he be disenrolled from an academic course based on unsatisfactory comprehension and his lack of motivation to be a good Soldier.

9.  On 8 July 1988, the applicant's commander initiated discharge action under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 11, for unsatisfactory performance and conduct while in Entry Level Status.  The commander stated that the reason for his proposed action is the applicant's continued failure to meet Army standards by failure to pass his military occupational specialty (MOS) training, failure to pass the Army Physical Fitness Test Scorecard (APFTS), and failure to respond to counseling.  The commander adds that the applicant did not demonstrate any desire to remain in the service because he had made no effort to correct his deficiencies despite repeated verbal and written counseling.  The commander concludes that the applicant's attitude and lack of motivation is incompatible with the Army.


10.  On 11 July 1988, the applicant was advised of his rights.  The applicant acknowledged notification of the separation action, consulted with counsel, waived consideration of his case by an administrative separation board, and submitted a statement in his own behalf.  The applicant provided a statement in which he indicated that he was unable to conform to military life, physically, mentally, and emotionally.

11.  On 22 July 1988, the approving authority waived the rehabilitative transfer requirement and approved the recommendation for discharge.  The approving authority also directed that the applicant be issued an entry-level separation with an uncharacterized description of service, and that he be transferred into the IRR.

12.  On 29 July 1988, the applicant was discharged with an uncharacterized description of service under the provisions chapter 11 of Army Regulation 
635-200.  The applicant was assigned a reenlistment code of 3 and a narrative reason for separation of "entry-level performance and conduct."  The applicant completed 6 months and 9 days of creditable active service with no lost time.

13.  Department of the Army United States Army Reserve Personnel Center, St. Louis, Missouri DARP-PAT-R (M5) Orders D-12-267038 shows that the applicant was honorably discharged from the IRR on 11 December 1992.

14.  The applicant provided a copy of his honorable discharge certificate, date 11 December 1992, from the United States Army for completion of his obligations of service.

15.  Army Regulation 635-200 (Personnel Separations), 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.  Unless the reason for separation requires a specific characterization, a Soldier will be awarded an uncharacterized characterization of service if in an entry-level status. (For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty.)
16.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  Numerical designator "4" indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator "4" does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40.

17.  Army Regulation 635-200 (Personnel Separations), paragraph 3-7a, 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.

18.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.






DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his entry-level discharge, dated 29 July 1988, be upgraded to an honorable discharge based on receiving an honorable discharge certificate, dated 11 December 1992, after completion of his obligation of service in the IRR.

2.  Entry-Level Soldiers not qualified for retention for one of several reasons, including not meeting minimum standards prescribed for successful completion of training are discharged in accordance with the provisions of Chapter 11 of Army Regulation 635-200.  The applicant's commander cited that the applicant had no desire to train and that he displayed a poor attitude.  The uncharacterized discharge and the reason for discharge were appropriate considering the available evidence.

3.  An uncharacterized discharge is not intended to be a negative reflection of a Soldier's military service.  It merely means the Soldier has not been in the Army long enough for his or her service to be characterized as honorable or otherwise. Soldiers who serve on active duty for less than 180 days are classified as being in an entry-level status.  The character of service of Soldiers in an entry-level status is uncharacterized.

4.  Based on the foregoing, the applicant's uncharacterized discharge is correct as currently constituted and there is no basis to amend his discharge from the Regular Army to show that he was honorably discharged.

5.  In order to justify correction of a military record the applicant much 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LDS___  _FCJ____  _CD____  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

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.





__Linda D. Simmons__
          CHAIRPERSON




INDEX

CASE ID
AR20070003958
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
UNCHAR
DATE OF DISCHARGE
1988/07/29
DISCHARGE AUTHORITY
AR 635-200 Ch 11-3a 
DISCHARGE REASON
Entry Level Status Performance and Conduct
BOARD DECISION
DENY
REVIEW AUTHORITY
Director
ISSUES         1.

2.

3.

4.

5.

6.