IN THE CASE OF:	  

		BOARD DATE:	  	  30 December 2008

		DOCKET NUMBER:  AR20080014428 


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, in effect, that her uncharacterized discharge be changed to an honorable discharge.  

2.  The applicant states, in effect, she broke her leg during the final physical training (PT) test during basic combat training (BCT) and this caused her to fail the 2-mile run event by approximately 2 minutes.

     a.  The applicant states that her drill sergeant refused to send her to the hospital, told her she was faking injury, and that she did not want to graduate with everyone else.  She also states, later that evening, the charge of quarters (CQ) sent her to the hospital in a taxi, hospital personnel put her leg in a splint, and she returned to her barracks in hospital scrubs.  The applicant adds that the drill sergeant from the PT test was at the barracks when she arrived and reiterated to her that she was faking the injury.

     b.  The applicant states that she remained in BCT as a holdover for about
3 1/2 months without any leave or privileges.  She also states she was treated very poorly and was publicly humiliated as an example of an unmotivated and poor Soldier to the next round of recruits.

     c.  The applicant states she was told she could either go through BCT again or be discharged.  She adds that the nearly six months of humiliation was enough for her and she elected to be discharged.

     d.  The applicant states she feels she was not treated fairly or with the respect she should have been given.  She offers her effort to complete the 2-mile run with a broken leg as evidence of her motivation and desire to succeed.  The applicant concludes by stating she cannot say she was discharged with honor and feels this is an injustice that should be corrected.

3.  The applicant provides copies of her DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States), dated 18 September 1991;
DA Form 2-1 (Personnel Qualification Record); and DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 14 December 1992.

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 personnel records contain a DD Form 4 that shows she enlisted in the U.S. Army Reserve (USAR) for a period of 8 years on
18 September 1991.  This document also shows that she then enlisted in the Regular Army (RA) and entered active duty on 8 July 1992 for a period of 2 years and 22 weeks.

3.  The applicant’s military personnel records contain a DA Form 2-1.  Item 35 (Record of Assignments) shows, in pertinent part, that she served in the USAR from 18 September 1991 to 7 July 1992; enlisted in the RA and entered active duty on 8 July 1992; was assigned to Company A, 6th Battalion, 10th Infantry, 3rd Training Brigade, U.S. Army Engineer Center, Fort Leonard Wood, Missouri on 13 July 1992; and was separated from the Army with an uncharacterized characterization of service on 14 December 1992.




4.  On 7 December 1992, the Commander, Company A, 6th Battalion,
10th Infantry, U.S. Army Engineer Center, Fort Leonard Wood, notified the applicant that separation action was being initiated on her under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 11 (Entry Level Performance and Conduct).  The company commander’s reason for the applicant's proposed separation was based on the applicant’s inability to meet the standards prescribed for successful completion of training due to being unable to adapt to military life.  The company commander added that the applicant demonstrated character and behavior characteristics not compatible with satisfactory continued service.  The letter of notification shows that the applicant was advised of her rights.  The commander also stated that he was recommending the applicant receive an uncharacterized entry level separation.

5.  On 7 December 1992, the applicant acknowledged that she was advised by the company commander of the basis for the contemplated action to separate her from the Army with an entry level separation (uncharacterized).  The applicant acknowledged with her signature that she had been afforded the opportunity to consult with appointed counsel and she declined the opportunity to do so.  The applicant also waived her rights in writing, waived consulting counsel, and elected not to submit statements in her own behalf.

6.  The applicant’s company commander subsequently recommended the applicant's separation from service under the provisions of Army Regulation
635-200, Chapter 11, prior to her expiration term of service with an entry level status separation, and forwarded the separation action to the approving authority. The basis for the commander’s recommended action was the applicant’s inability to meet the standards prescribed for successful completion of training due to lack of motivation and that she demonstrated character and behavior characteristics not compatible with satisfactory continued service.

     a.  The separation packet contains a DA Form 4856 (General Counseling Form) that shows the applicant received entry level status counseling from her first sergeant on 3 December 1992.  This document shows, in pertinent part, the applicant was counseled on her refusal to train and lack of motivation.  The first sergeant noted the applicant had been given ample opportunities to improve her physical condition through physical therapy and, despite the fact that her doctor cleared her for training and saw no medical reason for any pain, the applicant refused to train.  The first sergeant also noted that the applicant stated she no longer wanted to be part of the Army and indicated that he would recommend the commander separate her from the Army in an entry level status.  The DA Form 4856 shows the applicant acknowledged with her initials having been counseled 
by the first sergeant, her understanding of the reason for the counseling, and she concurred that the information recorded on the document accurately reflects the counseling session.  The applicant also placed her signature on the document.

     b.  The separation packet contains a DA Form 4856 that shows the applicant received counseling from her company commander on 3 December 1992 concerning his intention to recommend her for an entry level status separation for lack of motivation or desire to complete her required training.  This document shows, in pertinent part, the company commander acknowledged he was aware and sensitive to the applicant’s physical condition and past medical history.  He noted that the applicant had been counseled that all she needed to graduate basic training was the basic physical fitness test (BPFT) and that she would be given time to prepare for the test.  The company commander also noted that he was informed that the applicant submitted a statement to the first sergeant indicating she did not want to take the BPFT and no longer wanted to be in the Army.  Accordingly, the company commander advised the applicant that he had no choice but to recommend her separation from the Army.  The DA Form 4856 shows the applicant acknowledged with her initials having been counseled by the company commander, her understanding of the reason for the counseling, and she concurred that the information recorded on the document accurately reflects the counseling session.  The applicant also placed her signature on the document.

7.  On 9 December 1992, the Commander, 6th Battalion, 10th Infantry,
3rd Training Brigade, U.S. Army Engineer Center, Fort Leonard Wood, reviewed the proposed separation action based on unsatisfactory performance or conduct and approved waiver of the applicant’s rehabilitative transfer.  The battalion commander approved the discharge under the provisions of Army Regulation 635-200, Chapter 11, and directed the applicant be issued an entry level separation - uncharacterized.

8.  The applicant’s military personnel records contain a DD Form 214 that confirms she entered active duty on 8 July 1992 and was separated from the Army on 14 December 1992 with an uncharacterized characterization of service, under the provisions of Army Regulation 635-200, paragraph 11-3a, by reason of entry level status.  At the time she had completed 5 months and 7 days net active service this period.

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


10.  Army Regulation 635-200, in effect at the time of the applicant's separation from active duty, prescribed policies and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 11 of this Army regulation sets policy and provided guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in an entry level status.  This policy applied to RA, Army National Guard (ARNG), and USAR personnel who were in entry level status and, before the date of initiation of separation action, had completed no more than 180 days of creditable continuous active duty or initial active duty for training, or no more than 90 days of Phase II under a split or alternate training option.

11.  Army Regulation 635-200, Chapter 3 (Character of Service/Description of Separation), Section II (Types of Characterization or Description), paragraph
3-4 (Types authorized), provides that the following types of characterization of service or description of separation are authorized: (1) separation with characterization of service as honorable, general (under honorable conditions), or under other than honorable conditions; (2) entry level status (service will be uncharacterized), except as provided in paragraph 3-9a; (3) order of release from the custody and control of the Army by reason of void enlistment or induction; and (4) separation by being dropped from the rolls of the Army.  The types of separation will be used in appropriate circumstances unless limited by the reason for separation.

12.  Army Regulation 635-200, paragraph 3-7a (Types of administrative discharges/character of service), provides, in pertinent part, 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  This paragraph also provides that only the honorable characterization may be awarded a Soldier upon completion of his or her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under specific reason for separation, unless an entry level status separation (uncharacterized) is warranted.

13.  Army Regulation 635-200, paragraph 3-9 (Uncharacterized separations), provides, in pertinent part, that a separation will be described as an entry level separation with service uncharacterized, if processing is initiated while a Soldier is in entry level status.  This document provides that for ARNG and USAR Soldiers ordered to initial active duty training/active duty training (IADT/ADT), entry-level status terminates 180 days after the beginning of training.
DISCUSSION AND CONCLUSIONS:
1.  The applicant contends, in effect, that her discharge should be changed to an honorable discharge because she injured her leg during BCT and was unable to pass the PT test.  She also contends that she remained in BCT as a holdover without any privileges, was treated poorly and publicly humiliated, and believes her uncharacterized discharge was unjust and should be upgraded.

2.  The evidence of record shows the applicant was counseled by both her first sergeant and company commander and shows, in pertinent part, that she was afforded the opportunity to prepare for and take the PT test in order to graduate BCT.  The evidence of record also shows the applicant acknowledged that she refused to train and did not want to take the PT test.  Thus, the preponderance of evidence shows the applicant was afforded the opportunity to pass the PT test and graduate from basic training.

3.  The evidence of record shows the applicant informed her first sergeant that she did not want to be in the Army.  However, the applicant’s records are absent any evidence (e.g., applicant’s comments on counseling statements, personal statement(s) in the separation packet, etc.) to support the applicant’s contention that she was being treated poorly or publicly humiliated.  Thus, the applicant’s claim is not supported by the evidence of record and she provides insufficient to support her claim.

4.  The evidence of record shows that a separation will be described as an entry level separation with service uncharacterized, if separation action is initiated while a Soldier is in entry level status (i.e., has completed no more than 180 days of creditable continuous active duty).

5.  The evidence of record shows that the applicant entered active duty on 8 July 1992, she was discharged on 14 December 1992, and credited with 5 months and 7 days (i.e., 157 days) net active service during this period.  Thus, the evidence of record confirms the applicant was in an entry level status and her character of service is correctly recorded “uncharacterized” on her DD Form 214.  Therefore, the applicant is not entitled to correction of the character of service recorded on her DD Form 214, with an effective date of 14 December 1992.

6.  In order to justify correction of a military record the applicant must 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

____X____  ____X____  ____X____  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.



      __________X____________
               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)                                         AR20080014428



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ABCMR Record of Proceedings (cont)                                         AR20080014428



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