BOARD DATE:	  11 August 2009

		DOCKET NUMBER:  AR20090007653 


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 uncharacterized discharge to a fully honorable discharge.

2.  The applicant states, in effect, that he recently became disabled and he believes it is related to his military service; therefore, he would like his character of service upgraded to honorable.

3.  The applicant provides a copy of a VA Form 21-4138 (Statement in Support of Claim), dated 20 March 2009, 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 6 November 1992 and he was subsequently assigned to Fort Sill, OK, for completion of basic combat training and advanced individual training under the one station unit training program.

3.  On 17 February 1993, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for disobeying a lawful order from a senior commissioned officer by wrongfully possessing tobacco products on or about 13 February 1993.  His punishment consisted of a forfeiture of $175.00 pay, 14 days of restriction, and 14 days of extra duty.

4.  The applicant's records contain an extensive history of counseling statements by several members of his chain of command for various reasons that include failure to follow orders, multiple failures of the Army Physical Fitness Test, violation of the tobacco cessation policy, and leaving his equipment unsecure. 

5.  On 14 February 1993, 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 lack of motivation and inability to cope with the military lifestyle. 

6.  On 14 February 1993, the applicant acknowledged receipt of the separation notification in accordance with chapter 11 of Army Regulation 635-200.  He acknowledged that he understood if the request for discharge was approved, he would receive an entry level separation with uncharacterized service.  He further declined to consult with counsel and elected not to submit a written statement on his own behalf.

7.  On 14 February 1993, the immediate commander initiated separation action against the applicant in accordance with chapter 11 of Army Regulation         635-200 for lack of motivation and inability to cope with military lifestyle.  

8.  On 1 March 1993, the separation authority waived the rehabilitation requirements and approved the applicant's discharge from the Army under the provisions of chapter 11, Army Regulation 635-200.  Accordingly, the applicant 

was discharged on 4 March 1993.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged due to  entry level status performance and conduct in accordance with chapter 11, Army Regulation 635-200 with an uncharacterized character of service.  He completed 3 months and 29 days of creditable active military service.

9.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s        15-year statute of limitations.

10.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of this regulation sets policy and provides guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in entry level status.  It states in pertinent part that when separation of a member in entry level status is warranted by unsatisfactory performance or minor disciplinary infractions (or both) as evidenced by inability, lack of reasonable effort, or failure to adapt to the military environment, the member normally will be separated per this chapter.  This separation policy applies to enlisted members of the Regular Army, who have completed no more than 180 days active duty on current enlistment by the date of separation, have demonstrated that they are not qualified for retention for one or more of the following reasons: Cannot or will not adapt socially or emotionally to military life; cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline; have demonstrated character and behavior characteristics not compatible with satisfactory continued service; or failed to respond to counseling.

11.  Chapter 3 of this regulation describes the different types of characterization of service.  It provides 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, except when the characterization of under other than honorable condition is authorized or when the Secretary of the Army, on a case-by-case basis, determines that a honorable discharge is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.  For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break in service of more than 92 days of active military service.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the characterization of service on his DD Form 214 should be changed from "uncharacterized" to "honorable." 

2.  The evidence of record indicates the applicant lacked motivation and was unable to cope with the military lifestyle.  Accordingly, his immediate commander initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his military service at that time.

3.  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 it is approved by the Secretary of the Army.  

4.  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.  

5.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  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.  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)                                         AR20090007653



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ABCMR Record of Proceedings (cont)                                         AR20090007653



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