IN THE CASE OF:	  

		BOARD DATE:	       18 AUGUST 2009

		DOCKET NUMBER:  AR20090005163 


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 an upgrade of his discharge.  

2.  The applicant states he has improved himself and he is a good family man.  He requests his discharge be upgraded to a more acceptable discharge.  

3.  The applicant provides no additional documentary evidence 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 (RA) and entered active duty on 18 February 1986.  He was assigned to Fort Lee, Virginia to attend One Station Unit Training (OSUT) in military occupational specialty (MOS) 76P (Materiel Control and Accounting Specialist).  His record documents no acts of valor or significant achievement.

3.  On 4 August 1986, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 7-11 July 1986.  His punishment for this offense was a reduction to private (PV1)/E-1), forfeiture of $100.00, and
14 days of restriction and extra duty.

4.  The record further shows that the applicant was formally counseled by members of his chain of command on his apathetic attitude and poor duty performance on at least 3 separate occasions between 31 July and 5 August 1986.  

5.  On 1 August 1986, 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 (Personnel Separations – Enlisted Personnel), by reason of entry level status (ELS) performance and conduct.  The unit commander cited the applicant’s lack of motivation to serve, his failure to display the proper attitude and self-discipline required to become a productive Soldier, and his poor conduct.  The applicant acknowledged receipt of the separation notification and his understanding that if approved, he would receive an ELS separation with uncharacterized service.

6.  On 20 August 1986, 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 12 September 1986, the applicant was discharged accordingly.  At the time of his separation, he had completed 5 months and 25 days of creditable active military service. 

7.  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. 

8.  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.

9.  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, under honorable conditions discharge (GD) is not authorized under ELS conditions and an honorable discharge (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 should be upgraded because he has improved himself and is a good family was carefully considered.  However, although his post-service conduct is noteworthy, this factor alone is not sufficiently mitigating to support a change to his discharge.  

2.  The evidence of record confirms that separation action was initiated on the applicant while he was in ELS 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.  

3.  The record also shows the applicant's service was described as uncharacterized as a result of his being separated while in ELS.  A Soldier is in ELS, or probationary period, for the first 180 days of continuous active duty.  The issue of a GD to members in ELS 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.   

4.  An uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service.  It merely means that the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise.  As a result, there is no basis for granting the applicant's requested relief.


5.  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)                                         AR20090005163



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ABCMR Record of Proceedings (cont)                                         AR20090005163



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