IN THE CASE OF:
BOARD DATE: 3 March 2009
DOCKET NUMBER: AR20080015011
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 corrected to honorable.
2. The applicant states that he received a copy of a DD Form 214 (Certificate of Release or Discharge from Active Duty) with magic marker corrections, but the Department of Veterans Affairs (VA) will not accept this corrected form. He was told, over the phone, that he had an honorable discharge. He completed basic training with honors and had 1 month and 23 days of foreign service.
3. The applicant provides copies of a VA denial letter and his DD Form 214.
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
Counsel did not present any additional arguments, contentions, or documentation beyond that set forth in the 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 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 enlisted in the Regular Army on 22 August 1990, completed training, was awarded military occupational specialty 19D (Cavalry Scout), and assigned duty in Germany on 13 December 1990.
3. In mid-January 1991 the applicant was counseled on three occasions in reference to his threats of committing suicide, going AWOL (absent without leave), failure to keep Mental Hygiene appointments, and unsatisfactory performance.
4. The applicant's command proposed to separate him under Army Regulation 635-200, chapter 11 due to his apparent inability to adjust to military service.
5. On 18 January 1991, after consulting with counsel, the applicant acknowledged the proposed separation action and waived his right to counsel and to submit a statement on his own behalf.
6. On 29 January 1991, the discharge authority approved the discharge and directed that the applicant be separated with an uncharacterized discharge.
7. The applicant was separated on 6 February 1991 under the provisions of Army Regulation 635-200, chapter 11, with an uncharacterized discharge. He had 5 months and 15 days of creditable service with no lost time.
8. There are marker notations on the applicant's DD Form 214. It is not clear why they were made, what they mean, or who made these notations.
9. 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 for unsatisfactory performance or conduct as evidenced by inability, lack of reasonable effort or a failure to adapt to the military environment. These provisions apply only to individuals whose separation processing is initiated within 180 days of entry into active duty. An uncharacterized separation is mandatory under this chapter.
DISCUSSION AND CONCLUSIONS:
1. The applicant states he was told he had an honorable discharge and that he received a copy of a DD Form 214 with magic maker corrections showing this.
2. The applicant was separated under Army Regulation 635-200, chapter 11 because he was unable to adapt to military service as demonstrated by his threats of suicide and of going AWOL. These threats commenced less than 30 days after his arrival in Germany.
3. Furthermore, such behavior does not warrant an honorable characterization and his limited time of foreign service is not sufficient rationale to warrant an exception to policy.
4. The applicants discharge proceedings were conducted in accordance with applicable law and regulations in effect at the time. Soldiers who serve on active duty less than 180 days are in an entry level status. The service of Soldiers in an entry level status is uncharacterized.
5. The applicant's contention that his DD Form 214 was corrected is unsubstantiated. There is no indication that any official correction was made to his DD Form 214.
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) AR20080015011
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ABCMR Record of Proceedings (cont) AR20080015011
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