RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  2 August 2007
	DOCKET NUMBER:  AR20070004480 


	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

Mr. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. Curtis L. Greenway

Chairperson

Mr. Robert W. Soniak

Member

Ms. Karmin S. Jenkins

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 Separation Program Designation (SPD) Code of “JGA” be corrected.

2.  The applicant states, in effect, he was injured during basic training at Fort Benning, Georgia in 1995.  He was told to accept an entry level separation in order to avoid a medical discharge.  A permanent profile would bar him from reenlisting and returning to duty after he healed.

3.  He states, in effect, that he recently applied to enlist into the Air National Guard and he was told by his recruiter that his Reentry (RE) Code was acceptable; however, his SPD code reflects poor performance and conduct.  Therefore, he is requesting that his SPD code be changed to an acceptable code for enlistment in the Air National Guard.  He states that his recruiter indicated that SPD codes LBK, MCA, and KCA are acceptable for reenlistment.

4.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a copy of a memorandum subject: Proposed Separation Entry Level Performance and Conduct, dated 8 September 1995.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 14 September 1995.  The application submitted in this case is dated 13 March 2007.

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 entered active duty on 26 July 1995.  He attended basic combat training and advanced individual training, however, he did not complete his training.

4.  On 3 August 1985, the applicant received counseling concerning the policy on the treatment of trainees, unauthorized items, unit policy and Standard Operation Procedures.
5.  Between 6 August and 2 September 1995, the applicant received counseling from a noncommissioned officer for failure to shave, for missing training (by going on sick call for knee pain), for sitting on the floor during fire guard, for having dirty boots, and for his expressed oral and written desire "not to be here."

6.  On 5 September 1995, the applicant received counseling from his first sergeant concerning the negative effects of an entry level separation.  On the same date his commander informed him that he was recommending that he be discharged by reason of an entry level separation for failure to meet Army standards.  The applicant concurred with both counselings.

7.  On 5 September 1995, the applicant's commander recommended separation under the provision of Army Regulation 635-200, paragraph 11-2 for failure to meet and maintain the standards expected of an Infantry Soldier.  The commander recommended that the rehabilitation reassignment requirement be waived because further retention of the applicant would prove futile.  The applicant was unable to adapt emotionally to military life and he lacked the motivation to continue training.  Also, the commander requested an entry level separation to enable the applicant to meet a school start date.

8.  The applicant acknowledged the notification.  He acknowledged he understood that veteran’s benefits and other benefits normally associated with completion of active service would be affected.  The applicant did not desire to make any statement in his own behalf; he declined a medical separation examination, and his right to consult with military legal or civilian counsel.

9.  On 8 September 1996, the separation authority approved the proposed separation and directed that the applicant be discharged from the United States Army with an entry level separation under the provision of Army Regulation  
635-200, paragraph 11-2.

10.  On 14 September 1995, the applicant was discharged for entry level status performance and conduct.  His character of service was uncharacterized.  He was assigned a SPD code of “JGA” and an RE code of RE-3.  He had completed a total of 1 month and 19 days of active service.

11.  Army Regulation 635-5-1 (Separation Program Designated Codes), Table
2-3, states that the SPD code “JGA” denotes involuntary discharge, entry level performance and conduct.  The SPD code LBK denotes completion of required active service, the SPD codes of MCA and KCA denotes the early release program-voluntary separation incentive.

12.  The Army Human Resources Command publishes a cross-reference table of SPD and RE codes.  This cross-reference table shows that an SPD code of “JGA” is assigned an RE code of RE-3.

13.  Army Regulation 635-200 (Personnel Separations), chapter 11, establishes policy and prescribes procedures for separating members because of unsatisfactory performance or conduct (or both) while in an entry level status.  It states, in pertinent part, that separation under this chapter applies to Soldiers who are in an entry level status and, before the date of the initiation of separation action, have completed no more than 180 days of continuous active duty and have demonstrated that they cannot or will not adapt socially or emotionally to military life or cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline.  Entry level status is defined as the first 180 days of continuous active duty.  It further states that the characterization of service for members separated under the provisions of this chapter will be uncharacterized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his SPD code of “JGA” be corrected to allow him to enlist in the Air National Guard.

2.  There is no evidence or indication that there was an error or injustice, which caused the applicant to be discharged for entry level performance and conduct.  The evidence shows the applicant received several counseling statements for various reasons to include inappropriate conduct, inability to adapt emotionally to military life, and the lack of motivation to continue training.  The applicant concurred with each counseling statement.

3.  The applicant was assigned the proper SPD of “JGA.”  The code remains a valid code.  Since the applicant was properly discharged, there is no reason to change his SPD code.

4.  The applicant states that he was told to accept an entry level separation in order to avoid a medical discharge, is noted.  However, his record contains no such statement and there is no evidence the applicant was medically disqualified. While correspondence from the applicant’s command indicates that the applicant was incapable of completing his training, it appears that he lacked the motivation to continue his training it was not his health.  The evidence shows that the applicant acknowledged and agreed with the separation recommendation.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 14 September 1995; therefore, the time for the applicant to file a request for correction of any error or injustice expired on  
13 September 1998.  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

___rws __  ___ksj___  ___clg___  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.




__________Curtis L. Greenway______
          CHAIRPERSON




INDEX

CASE ID
AR20070004480
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070802
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.