IN THE CASE OF:	  

		BOARD DATE:	  22 January 2009

		DOCKET NUMBER:  AR20080017930 


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 his uncharacterized discharge be changed to a general discharge (GD) under honorable conditions.   

2.  The applicant states, in effect, his discharge was unjust because he was not physically capable of performing his duties.  He claims any related misconduct was due to his not being able to perform.  

3.  The applicant provides a self-authored letter in support of his 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. The applicant’s record shows that he enlisted in the Regular Army and entered active duty on 6 December 1984.  He was assigned to Fort Sill, Oklahoma, to attend One Station Unit Training (OSUT) in military occupational specialty (MOS) 13B (Field Artillery).  

3.  The applicant's record shows he never advanced above his entry grade of private/E-1 (PV1) while serving on active duty, and his record documents no acts of valor, significant achievement, or service warranting special recognition.  His record shows he was formally counseled by members of his chain of command on 15 separate occasions between 14 December 1984 and 30 January 1985, for a myriad of performance and conduct related matters that included but was not limited to:  refusing to train; lack of motivation; poor attitude; ignoring instructions; breaking restriction; and substandard performance.  

4.  On 1 February 1985, the applicant’s unit commander informed the applicant of the intent to process him for separation under the provisions of Chapter 11, Army Regulation 635-200, by reason of entry level status (ELS) performance and conduct.  The unit commander cited the applicant’s failure to meet the standards of basic rifle marksmanship after being afforded three opportunities to qualify with his rifle.  He also noted the applicant's preparation of a refusal to train statement and his lack of desire to be a productive Soldier as the basis for taking the action. The applicant acknowledged receipt of the separation notification and his understanding that if approved, he would receive an ELS separation with uncharacterized service.  

5.  On 5 February 1985, the separation authority approved the applicant’s separation for performance and conduct while in an ELS.  The separation authority directed that the applicant be separated under the provisions of chapter 11, Army Regulation 635-200 and that his service be uncharacterized based on his ELS.  On 11 February 1985, the applicant was discharged accordingly.  At the time of his separation, he had completed 2 months and 6 days of active military service. 

6.  There is no evidence indicating the applicant applied to the Army Discharge Review Board (ADRB) for a change to his discharge within that board's 15-year statute of limitations. 

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-9 contains guidance on ELS separations.  It states, in pertinent part, that a separation will be described as entry-level with service uncharacterized if at the time separation action is initiated, the Soldier has less than 180 days of continuous active duty service.

8.  Chapter 11 of the separations regulation provides for the separation of personnel due to unsatisfactory performance, conduct, or both, while in an ELS.  An uncharacterized service description is normally granted to Soldiers separating under this chapter.  A general discharge is not authorized under ELS conditions, and an HD is rarely ever granted.  An HD may be given only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge was unjust was carefully considered.  However, there is insufficient evidence to support this claim.  The evidence of record confirms that separation action was initiated on the applicant while he was in an ELS status prior to his completing 180 days of continuous active military service.  The record further shows that the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

2.  The record also shows the applicant's service was described as uncharacterized as a result of his being separated while in an ELS status.  A Soldier is in an ELS status, or probationary period, for the first 180 days of continuous active duty.  The issue of a GD to members in an ELS status is not authorized, and an HD may be granted only in cases that are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.  Given no such unusual circumstances are present in the applicant’s record, there is an insufficient evidentiary basis to support any change to the description (characterization) of his service as uncharacterized.   

3.  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)                                         AR20080017930



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ABCMR Record of Proceedings (cont)                                         AR20080017930



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