IN THE CASE OF:	  

		BOARD DATE:	       30 JUNE 2009

		DOCKET NUMBER:  AR20090001579 


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 her uncharacterized discharge be changed to an honorable discharge.  

2.  The applicant states, in effect, Department of Veterans Affairs (VA), VA Regional Office (VARO) - Buffalo, Buffalo, New York, letter, dated 22 December 2008, states that she now has an honorable discharge.

3.  The applicant provides, in support of her application, copies of a VA, VARO - Buffalo, Buffalo, New York, letter, dated 22 December 2008, and DD Form 214 (Certificate of Release or Discharge from Active Duty) with an effective date of
1 July 1991.

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 for a period of 8 years on
12 April 1991 in the Delayed Entry Program (DEP).  She was discharged from the DEP on 15 May 1991 and enlisted in the Regular Army (RA) on 16 May 1991 for a period of 4 years.

3.  Headquarters, U.S. Army Training Center and Fort Jackson, Fort Jackson, South Carolina, Orders 112-650, dated 22 May 1991, show, in pertinent part, the applicant was assigned to Company A, 4th Battalion, 13th Infantry Training Regiment, Fort Jackson, South Carolina, on 22 May 1991, to attend Basic Training.

4.  A DA Form 2-1 (Personnel Qualification Record) shows the following.

   a.  Item 6 (Military Occupational Specialties) is blank.

   b.  Item 17 (Civilian Education and Military Schools) fails to show the applicant completed any military training courses or schools.
   
   c.  Item 27 (Remarks) contains the entry “RE 3 Not Eligible to Enlist.”

   d.  Item 35 (Record of Assignments), in pertinent part, shows she was assigned to Company A, 4th Battalion, 13th Infantry Regiment, 1st Basic Training Brigade, Fort Jackson, South Carolina, on 24 May 1991, to attend Basic Training.  This item also shows the applicant was separated on 1 July 1991 with an uncharacterized discharge.

5.  The applicant’s military personnel records are absent a copy of her administrative separation packet.

6.  Headquarters, U.S. Army Training Center and Fort Jackson, Fort Jackson, South Carolina, Orders 135-143, dated 25 June 1991, show the applicant was assigned to the Transition Point, U.S. Army Transition Center and Fort Jackson, Fort Jackson, South Carolina, on 28 June 1991, for discharge on 1 July 1991.

7.  The applicant’s DD Form 214 shows she entered active duty on 16 May 1991 and was separated from the RA on 1 July 1991 with an uncharacterized discharge, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-11, based on failure to meet procurement medical fitness standards (no disability).  At the time she had completed 1 month and 16 days of net active service.

8.  There is no evidence showing the applicant applied to the Army Discharge Review Board requesting a change regarding the reason or character of service of her discharge within its 15-year statute of limitations.

9.  In support of her application, the applicant provides a copy of a VA, VARO - Buffalo, Buffalo, New York, letter, dated 22 December 2008, that shows, in pertinent part, the character of discharge and service dates shown on VA records is "Honorable, 16 MAY 1991 - 01 JUL 1991."

10.  Army Regulation 635-200, in effect at the time, provided the basic authority for the separation of enlisted personnel.  Paragraph 5-11 specifically provides that Soldiers who were not medically qualified under procurement medical fitness standards, when accepted for enlistment, or who became medically disqualified under these standards prior to entrance on active duty or active duty training or initial entry training will be separated.  A medical proceeding, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within six months of the Soldier’s initial entrance on active duty, that the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at that time, and the medical condition does not disqualify the soldier from retention in the service under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).  The characterization of service for Soldiers separated under this provision of the regulation will normally be honorable, but will be uncharacterized if the Soldier is in an entry level status.

11.  Army Regulation 635-200, chapter 3, paragraph 3-7 (Types of administrative discharges/character of service), provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  This paragraph also provides that only the honorable characterization may be awarded a Soldier upon completion of his/her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under specific reason for separation, unless entry level status separation (uncharacterized) is warranted.

12.  Army Regulation 635-200, paragraph 3-9 (Uncharacterized separations), provides, in pertinent part, that a separation will be described as an entry level separation with service uncharacterized, if processing is initiated while a Soldier is in entry level status.  This document provides, in pertinent part, that entry-level status terminates 180 days after the Soldier’s entry on active duty.
13.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that her uncharacterized discharge should be changed to an honorable discharge because the VARO - Buffalo, Buffalo, New York, issued a letter on 22 December 2008 stating that she now has an honorable discharge.

2.  The applicant’s contention was carefully considered.  However, a document issued by another government agency or organization pertaining to the character of service of an individual’s discharge is a prerogative of that agency/organization and has no bearing on the corresponding DD Form 214 issued for that period of service by the Department of the Army.

3.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  The applicant fails to provide such evidence.  Thus, in the absence of evidence to the contrary, the presumption is that the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

4.  The evidence of record shows that a separation will be described as an entry level separation with service uncharacterized, if separation action is initiated while a Soldier is in entry level status (i.e., has completed no more than 180 days of creditable continuous active duty).

5.  The evidence of record shows the applicant entered active duty on 16 May 1991, was discharged from active duty on 1 July 1991, and that she had completed 1 month and 16 days (i.e. 46 days) of net active service during this period.  Thus, the evidence of record confirms the applicant was in an entry level status and her character of service is correctly recorded as “uncharacterized” on her DD Form 214.  Therefore, she is not entitled to correction of the character of service recorded on her DD Form 214 with an effective date of 1 July 1991.

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.




      _______ _   _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)                                         AR20090001579



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ABCMR Record of Proceedings (cont)                                         AR20090001579



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