IN THE CASE OF:	

		BOARD DATE:	21 July 2009  

		DOCKET NUMBER:  AR20090004285 


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 the characterization of service on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from "uncharacterized" to "honorable."

2.  The applicant states that as soon as he arrived at basic combat training, his sergeant ordered him to do push-ups because he did not address his sergeant properly, which was not fair because basic training did not start until a few days later.  He adds that during basic combat training, he passed the marksmanship qualification with his rifle despite the lack of glasses.  He feels that his discharge was not justified or fair. 

3.  The applicant did not provide any additional documentary evidence in support of his request.

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 records show he enlisted in the Regular Army for a period of 3 years on 2 January 1986 and subsequently reported to Fort Leonard Wood, MO, for completion of basic combat training.

3.  The applicant's record contains multiple counseling statements that show the applicant was counseled for various issues including poor performance, lack of discipline, poor motivation, failure to zero and/or qualify with his weapon, violation of range safety, poor attention to details, bayonet security violation, and poor performance on common tasks testing.  

4.  On 19 February 1986, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of chapter 11 of Army Regulation 635-200 (Personnel Separations) by reason of failure to meet minimum standards prescribed for successful completion of training due to lack of motivation and self-discipline. 

5.  On 21 February 1986, the applicant acknowledged receipt of the notification memorandum, and consulted with legal counsel and was advised of the basis for the contemplated separation and its effects, the rights that were available to him, and the effect of a waiver of his rights.  He further acknowledged that if his separation was approved, he would receive an entry level separation with an uncharacterized discharge.  He also submitted a statement and indicated that he was being singled out and/or ridiculed by other members of the platoon because of his age which caused him to be nervous during tests and/or when facing his sergeant.  

6.  On 21 February 1986, the applicant's immediate commander initiated separation action against the applicant under the provisions of chapter 11 of Army Regulation 635-20.  The immediate commander indicated that the applicant was in poor physical condition when he entered the Army and had shown little improvement.  He was far below the standards in the push-ups event of the Army Physical Fitness Test and resisted developing the self-discipline necessary to become a productive member.  He disregarded counseling and was a habitual safety violator on the ranges. 

7.  On 26 February 1986, the separation authority waived the rehabilitative transfer and approved the recommendation to discharge the applicant from the Army under the provisions of chapter 11 of Army Regulation 635-200 by reason of unsatisfactory performance.  On 3 March 1986, the applicant was discharged. The DD Form 214 he was issued at the time of his discharge shows he was discharged in accordance with chapter 11 of Army Regulation 635-200 by reason of entry level status performance and conduct, with an "uncharacterized" character of service.  He had completed 2 months and 2 of creditable active military service.

8.  Army Regulation 635-200 (Personnel Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 3 of that regulation describes the different types of characterization of service.  It states in pertinent part that an Uncharacterized Separation is an entry-level separation.  A separation will be described as an entry-level separation if processing is initiated while a member is in an entry-level status – for ARNG Soldiers, defined as beginning upon enlistment and terminating 180 days after beginning training (for Soldiers ordered to one continuous period of initial ADT) or 90 days after beginning advanced individual training (for Soldiers order to split or alternate training options) – except when characterization under other than honorable condition is authorized under the reason for separation and is warranted by the circumstances of the case or when The Secretary of the Army, on a case-by-case basis, determines that characterization of service as Honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his discharge should be upgraded.  

2.  During the first 180 days of continuous active military service, a member's service is under review.  When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant an under other-than-honorable conditions discharge.  An honorable characterization may be given only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and is approved by the Secretary of the Army.  

3.  The entry-level separation is given regardless of the reason for separation. This uncharacterized discharge is neither positive nor negative; it is not "derogatory."  It simply means the Soldier did not serve long enough to qualify for a specified characterization of service.  The applicant’s DD Form 214 correctly shows his character of service as uncharacterized.

4.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement in this case. Therefore, he is not entitled to relief.
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)                                         AR20090004285



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090004285



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1