IN THE CASE OF:	  

		BOARD DATE:	        19 August 2008

		DOCKET NUMBER:  AR20080006577 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his uncharacterized discharge be upgraded to honorable.

2.  The applicant states, in effect, that they changed his discharge at the district office in Chicago (sic).  He contends that "entry level separation" was not on his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

3.  The applicant did not provide additional documentary evidence 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.  On 2 November 1982, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 6 years.  On 19 January 1983, he was discharged from the DEP and enlisted in the Regular Army for 3 years.  He did not complete basic combat training and did not qualify in a military occupational specialty.

3.   On numerous occasions the applicant was counseled for numerous infractions such as failing to follow instructions; disobeying lawful orders; failing barracks inspections; lack of motivation and self-discipline; negative attitude; being a disruptive influence within the unit; poor personal hygiene; displaying a total disregard for authority; failing the physical training test; lying to his chain of command; and using ethnic slurs.  He was advised that he could be separated under the provisions of chapter 11, Army Regulation 635-200 (Enlisted Personnel Separations) if he had less than 180 days of active service.  

4.  On 7 February 1983, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for disobeying a lawful order from the unit commander.  His punishment consisted of a reduction to private/E-2 and 14 days of extra duty.  

5.  On 4 January 1983, the unit commander notified the applicant of initiation of separation action under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 11 (entry-level separation) by reason of entry level status performance and conduct, with an uncharacterized discharge.  The unit commander indicated that he was initiating separation action based on the applicant's complete lack of motivation, self-discipline, lack of self-respect, and negative attitude, coupled with his deplorable physical condition.

6.  On 8 February 1983, the applicant consulted with legal counsel and submitted a statement in his own behalf.  In this statement he indicated that he felt that he had not personally done anything against the U.S. Constitution or violated any military laws.  He contended that he was trying to conduct himself in a military manner.

7.  The separation authority waived a rehabilitative transfer and directed the applicant be separated with an entry-level discharge with service uncharacterized.

8.  On 10 February 1983, the applicant was discharged by reason of entry-level status - performance and conduct after completing 22 days of active military service.  His service was uncharacterized.  His DD Form 214 shows that he was discharged under the provisions of Army Regulation 635-200, chapter 11, by reason of entry level status performance and conduct.
9.  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.

10.  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.  

11.  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.

12.  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 was separated while in entry-level status because of his lack of motivation, lack of self-discipline, lack of self-respect, negative attitude, and deplorable physical condition.  The applicant's unit ensured that he was appropriately counseled about the deficiencies, which could lead to separation and he was afforded a reasonable opportunity to overcome noted deficiencies.  
As the applicant did not subsequently conform to required standards of discipline and performance, the command appropriately determined the applicant did not demonstrate the potential for further military service.

2.  The applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time and he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would tend to have jeopardized his rights.  

3.  An uncharacterized discharge simply means that the applicant was in an entry-level status, i.e., in an initial probationary period of service.  An 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.

4.  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.  No such unusual circumstances were present in the applicant’s record and his service did not warrant an honorable discharge.

5.  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 and there is no basis to change his characterization of service for discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.


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      ______________________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080006577



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ABCMR Record of Proceedings (cont)                                         AR20080006577



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