RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 September 2007
	DOCKET NUMBER:  AR20070006242 


	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. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. Jeffrey C. Redmann

Chairperson

Mr. Dean Camarella

Member

Ms. Qawiy A. Sabree

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 the character of service "UNCHARACTERIZED" be changed to honorable on his DD Form 214 (Certificate of Release or Discharge from Active Duty) with the period ending 4 April 1991.

2.  The applicant states, in effect, that he hurt his back while in the service and that’s why he received an uncharacterized discharged.  His back problem did not get any better for him to return to the military and that the Veterans Affairs evaluated him with 20 percent service connected disability.  He further states that the discharged characterization on his DD Form 214 should be changed in order for him to use his G.I. Bill to go back to school.

3.  The applicant provides Department of Veterans Affairs Rating Decision, dated 12 June 1996.

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 enlisted in the Regular Army on 29 June 1990 and did not successfully completed basic training.  

3.  A DA Form 4856 (General Counseling Form), dated 14 March 1991.  Notes that the applicant was in the hospital for the first three weeks and it was impossible for him to master his basic Soldierly skills.  He had missed all training at that point and that he was being recommended for the New Start Program.

4.  A DA Form 4856, dated 19 March 1991 shows that the applicant was being counseled for missing too many mandatory periods of training due to being hospitalized from 12 March 1991 through 14 March 1991.

5.  A DA Form 4856, dated 14 March 1991, indicates the applicant was being recommended for entry level separation for his lack of motivation and refusing to train when he was with the New Start Program.

6.  On 29 March 1991, the applicant’s commander signed an elimination packet on the applicant for separation under the provisions of Army Regulation 635-200, chapter 11, entry-level status performance and conduct.  The reason cited by the commander was the applicant’s loss of all motivation and self-discipline necessary to become a productive Soldier.  His attitude was more focused on leaving the service instead of training.  The Soldier was a disruptive influence to other Soldiers in his position.  The document shows that if approved by the separation authority the applicant would receive an entry level separation with uncharacterized service.  On 29 March 1991, the applicant acknowledged notification of this action.  He indicated that he did not desire to consult with counsel and that he did not desire to make a statement in his behalf.

7.  On 2 April 1991, the appropriate authority approved the recommendation for discharge.  On 4 April 1991, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 11-3a.  He had completed 2 months of creditable active service.  His character of service was listed uncharacterized and the narrative reason for separation was listed as entry level status. 

8.  Army Regulation 635-200, 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.  

9.  Army Regulation 635-200, paragraph 1-18 states that when a Soldier’s conduct or performance approaches the point where a continuation of such conduct or performance would warrant initiation of separation action, he or she will be counseled about his or her deficiencies.  Before initiating separation action, commanders will ensure that the Soldier receives adequate counseling and rehabilitation in accordance with chapter 1, section II.  A responsible person will counsel the Soldier about his or her deficiencies at least once before initiating separation action.  Additional formal counseling is discretionary.  The counseling will be conducted per Army Regulation 350-21 (Instructions in Benefits of an Honorable Discharge).  It will be comprehensive and will include at least the reason for counseling, that separation action may be initiated if the behavior continues, and the type of discharge that could result form the possible separation action and the effect of each type.  Replacement stream Soldiers will be recycled (rehabilitated) at least once.  The requirement for a rehabilitative transfer may be waived by the separation authority.  Unless the reason for separation requires a specific characterization, a Soldier will be awarded an uncharacterized description of service if in an entry-level status.  (For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty.)

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  A chapter 11 discharge is used for entry-level Soldiers not qualified for retention for one of several reasons, including if they cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline.  There was evidence, in the applicant's counseling's, to show he could not meet the minimums standards for successful completion of basic training.  The DA Forms 4856 showed that the regulatory counseling requirement was met.  His command met the rehabilitative requirement by recycling him once.

2.  It is acknowledged that some Department of Veterans Affairs benefits and other benefits are dependent upon the type of discharge awarded and/or the length of service (total service and/or active duty service).  However, the uncharacterized discharge directed and the reasons therefore were appropriate considering all the facts of this case.  An uncharacterized discharge merely means that the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JCR       __DC   __  __QAS__  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.





__Jeffrey C. Redmann_____
          CHAIRPERSON




INDEX

CASE ID
AR20070006242
SUFFIX

RECON

DATE BOARDED
20 SEPTEMBER 2007
TYPE OF DISCHARGE
UNCHAR
DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
144.2503.0000
2.

3.

4.

5.

6.