IN THE CASE OF:	

		BOARD DATE:	  21 April 2009

		DOCKET NUMBER:  AR20090000327 


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 an honorable discharge. 

2.  The applicant states, in effect, that he served in the Armed Forces for half of a year and he feels that he is entitled to some sort of military acknowledgement due to the fact that he was truly committed to his duty as an active member of the Army.  He also states that he has a Department of Veterans Affairs (VA) identification card to acknowledge that he had active service in the Armed Forces. 

3.  The applicant provides no additional documents with 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 enlisted in the U.S. Army Reserve (USAR) in Brooklyn, New York on 14 March 1993, for a period of 8 years and training as a food service specialist.  He was ordered to initial active duty for training on 5 May 1993 and was transferred to Fort Jackson, South Carolina to undergo his basic combat training (BCT).

3.  During the period of 11 May 1993 to 1 July 1993, the applicant was counseled on at least 20 occasions by his drill instructor and commander for failure to meet Army Physical Fitness Test (APFT) standards, failure to make progress to meet APFT standards, failure of basic rifle marksmanship (BRM), displaying a negative attitude, failure to secure his weapon, and disobeying a lawful order.  

4.  Nonjudicial punishment (NJP) was imposed against the applicant on 8 June 1993 for being derelict in his duties by falling asleep while on fire guard.  His punishment consisted of a forfeiture of pay, extra duty, and restriction.  The applicant did not appeal his punishment.

5.  On 1 July 1993, the applicant's commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, due to entry level performance and conduct.  He cited as the basis for his recommendation the applicant's failure to meet minimum standards for physical fitness during BCT, his NJP for dereliction of duty, and his inability to adapt to Army standards and lack of motivation.  He also advised the applicant that his service would be uncharacterized because he had served less than 180 days of active duty service.

6.  The applicant declined the opportunity to consult with counsel and waived all of his rights.

7.  The appropriate authority approved the recommendation for discharge on 2 July 1993 and directed that his service be uncharacterized.

8.  Accordingly, he was discharged on 9 July 1993 under the provisions of Army Regulation 635-200, paragraph 11-3a, due to entry level status, with service uncharacterized.  He had served 2 months and 5 days of total active service and 1 month and 24 days of inactive service.

9.  There is no evidence in the available records that show that the applicant applied to the Army Discharge Review Board for an upgrade in the characterization of his service within that board's 15-year statute of limitations.

10.  Army Regulation 635-200, chapter 11 provides the policies and procedures for separating individuals who are in an entry level status (180 days or less) who cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline.  It provides that service under this provision will be uncharacterized unless the Secretary of the Army determines that a characterization of honorable is warranted by unusual circumstances involving personal conduct and performance of duty.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would tend to jeopardize his rights.  Accordingly, the type of discharge directed, the characterization of his service and the reasons therefore were appropriate considering all of the available facts of the case.

3.  Inasmuch as the applicant had less than 180 days of active service during his current enlistment, his service was properly uncharacterized and there appears to be no basis to characterize it as honorable, especially since he was properly advised that his failure to complete the training for which he contracted would result in his service being uncharacterized.

4.  Accordingly, there appears to be no basis to change the characterization of his otherwise undistinguished service.

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)                                         AR20090000327



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ABCMR Record of Proceedings (cont)                                         AR20090000327



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