IN THE CASE OF:	  

		BOARD DATE:	        27 January 2009

		DOCKET NUMBER:  AR20080016078 


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:

   a.  that his 22 February 2002 discharge be changed from “uncharacterized” to an honorable or general, under honorable conditions discharge; and

   b.  	that the separation code "JGA" on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be removed.

2.  The applicant states, in effect, that his DD Form 214 is wrong, specifically because the separation code is for a person who was released from military service as a result of pregnancy.  He also states that, in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), he should have been discharged with an under honorable conditions discharge as a Reservist.

3.  The applicant continues that he was a Reservist and the Army did not consider the fact that he drilled with the "312" Psychological Operations unit from June through September [2001] without incident prior to entering active duty training.  He also went though basic training without incident until the field training exercises occurred.  “The brief period of the field training exercises was an isolated instance that was augmented later by the glut of paperwork that followed it.”


4.  The applicant states that he believes that there was an attempt by his drill sergeant or someone else to harm his professional career and he is suffering from his military record; socially, economically, and professionally.  His records read that as a recruit he was dangerous to his superior and his follow Soldiers as well as to himself.  His uncharacterized discharge brings up questions that can only lead to concerns that make him an unfavorable candidate.

5.  The applicant provides his DD Form 214; a U.S. Army Infantry Center Certificate of Training, dated 24 January 2002; basic training qualification records; and a personal résumé.

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 U.S. Army Reserve (USAR) on 30 May 2001.  He successfully completed basic combat training, but did not complete advanced individual training.  

3.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 22 January 2002, shows the applicant was command-referred for evaluation of inappropriate behavior during a field training exercise.  He underwent a mental evaluation by a medical physician.  The physician stated "Per his command, he picked up and threw a smoke grenade hitting a drill sergeant with it.  He also pointed a weapon at another Soldier and was reluctant to relinquish the weapon.  Given the concern regarding safety of this soldier and others about him, he was admitted to the psychiatry ward for observation."

4.  The physician further stated there was no evidence of cognitive impairment. Although the applicant had displayed evidence of mild paranoid feelings, he did not demonstrate the presence of a psychiatric disorder that warrants disposition through medical channels.  The applicant acknowledged a past history of psychiatric consultation to work on goal-setting, but he declined permission to allow the Army psychiatrist to contact his family or the civilian psychiatrist he saw.  The physician indicated that the applicant had the mental capacity to understand and participate in administrative proceedings.  The physician continued that although a psychiatric diagnosis could not be made on the basis of the observation, the applicant could not be psychiatrically cleared.  Given the failure to perform to the expected standard in the field setting, the applicant's command was advised to consider administrative separation.

5.  The applicant's record reveals a disciplinary history that includes his acceptance of general counseling statements on the following dates:  30 January 2002 for failure to conform or to adapt to military environment; 31 January 2002 for failure to follow orders; and 2 February 2002 for refusing to sign excess leave paperwork.

6.  On 31 January 2002, 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 failure to adapt to a military environment.  The document shows that if approved by the separation authority, the applicant would receive an uncharacterized service discharge.  On 2 February 2002, the applicant acknowledged notification of this action.  He indicated that he desired to consult with counsel and that he would make a statement in his own behalf.

7.  The applicant submitted a statement in his own behalf in which he stated, "I would like to stay in the Army because I think that it is a great opportunity for me. I enjoy training with the expectation of becoming a Psychological Operations Specialist.  Being a Soldier is an integral part of my life and my career plan."  The applicant continued that he made mistakes during field training exercises, he should have surrendered his weapon immediately, and he should have made knowing the mission objectives his priority.

8.  On 13 February 2002, the appropriate authority approved the recommendation for discharge.  On 22 February 2002, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 11-2c.  He had completed 3 months and 23 days of creditable active service.  

9.  Item 24 (Character of Service) of the applicant's DD Form 214 for the period ending 22 February 2002 shows the entry "UNCHARACTERIZED"; item 
26 (Separation Code) shows a separation code of “JGA”; and item 28 (Narrative Reason for Separation) shows the entry "ENTRY LEVEL PERFORMANCE AND CONDUCT."


10.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 25 April 1979, the ADRB reviewed and denied the 
applicant's request for upgrade.  The ADRB determined that the applicant's reason for discharge was proper and equitable and that the discharge was properly characterized.

11.  Army Regulation 635-200, chapter 11, establishes policy and prescribes procedures for separating members because of unsatisfactory performance or conduct while in an entry level status.  It states, in pertinent part, that separation under this chapter applies to Soldiers who are in an entry level status and, before the date of the initiation of separation action, have completed no more than 180 days of continuous active duty and have demonstrated that they cannot or will not adapt socially or emotionally to military life.  Entry level status is defined as the first 180 days of continuous active duty.  It further states that the character of service for members separated under the provisions of this chapter will be uncharacterized.

12.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation, in effect at the time, shows that the SPD code “JGA” specifies the narrative reason for an involuntary discharge as "Entry Level Performance and Conduct” and that the authority for discharge under this separation program designator is “Army Regulation
635-200, Chapter 11."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his character of service should be changed to honorable or general under honorable conditions on his DD Form 214, and that his separation code of "JGA" on his DD Form 214 should be removed.

2.  Evidence of record shows that the applicant was discharged from active duty on 22 February 2002 under the provisions of Army Regulation 635-200, chapter 11, with service uncharacterized by reason of entry level status performance and conduct.  The applicant has failed to show through the evidence submitted or the evidence of record that the characterization of service issued to him was in error or unjust.  The applicant's characterization of service was applied in accordance with the applicable regulations.



3.  The evidence of record shows the applicant was separated with a separation code of "JGA" in accordance with the governing regulation in effect at the time.  There is no evidence of record which shows the separation code issued to him was in error or unjust.  The applicant contends that his separation code on his DD Form 214 was for a person released from the military as a result of pregnancy.  However, the separation code “JGA” does not refer to pregnancy; it refers to "Entry Level Performance and Conduct.”  Army Regulation 635-5-1 shows that for a voluntary discharge due to pregnancy the appropriate separation code is "KDB."

4.  Therefore, there is no basis for granting the applicant’s request.

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.


															XXX
      ______________________
               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)                                         AR20080016078



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ABCMR Record of Proceedings (cont)                                         AR20080016078



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