IN THE CASE OF:
BOARD DATE: 24 November 2008
DOCKET NUMBER: AR20080014870
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 characterization of service be corrected from uncharacterized to honorable. He also requests, in effect, that his Separation Program Designator (SPD) code be corrected.
2. The applicant states that he has been told that his SPD code indicates that he was separated for pregnancy, and he is male. As for the characterization of service, he is unable to gain employment at the Department of Veterans Affairs with an uncharacterized discharge.
3. The applicant provides his separation document (DD Form 214).
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 applicants 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 applicants 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 records show that he enlisted in the Regular Army on 14 November 1989.
3. The applicant was counseled while in initial entry training on 14 February and on 24 February 1990. In those counseling sessions the applicant reported that he felt nervous all the time. He was unable to think and function normally, and he was not sleeping very well. The applicant responded to the counseling sessions by requesting discharge.
4. On 6 March 1990, the applicant's commander notified him of his intent to recommend his discharge for Entry Level Status Performance and Conduct and of his rights in conjunction with that recommendation. In the applicant's response to that notification, he acknowledged that he may expect to encounter substantial prejudice in civilian life if he was discharged for Entry Level Status Performance and Conduct. With that knowledge, the applicant did not invoke any of his rights.
5. The applicant's commander then forwarded a recommendation to discharge the applicant for Entry Level Status Performance and Conduct, which was approved by the appropriate authority.
6. Accordingly, on 16 March 1990 the applicant was discharged with an uncharacterized characterization of service under the provisions of Army Regulation 635-200, paragraph 11-3. The narrative reason for separation was entry level status. He was assigned an SPD code of "LGA." The applicant had served 4 months and 3 days of active duty.
7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 11 of that regulation provides for the separation of personnel in an entry level status who cannot or will not adapt socially or emotionally to military life or who have demonstrated character and behavior characteristics not compatible with satisfactory continued service. These provisions apply only to individuals whose separation processing is started within 180 days of entry into active duty. An uncharacterized separation is mandatory under this chapter.
8. Army Regulation 635-5-1, in effect at the time, provides the SPD codes for Army personnel being separated from active duty. Table C-1 shows the SPD
code of "LGA" was to be assigned to personnel being separated for Entry Level Performance and Conduct under the provisions of Army Regulation 635-200, chapter 11.
DISCUSSION AND CONCLUSIONS:
1. The applicant was discharged for Entry Level Performance and Conduct under the provisions of Army Regulation 635-200, chapter 11. As such, his service was properly uncharacterized as required by this regulation.
2. Army Regulation 635-5-1, in effect at the time, shows the SPD code
"LGA" was properly assigned to the applicant since he was separated for Entry Level Performance and Conduct under the provisions of Army Regulation
635-200, chapter 11.
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) AR20080014870
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