IN THE CASE OF:	  

		BOARD DATE:	  3 November 2009

		DOCKET NUMBER:  AR20090008429 


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 that the character of service "UNCHARACTERIZED" be changed to honorable on his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 23 April 2003.

2.  The applicant states that he is in the process of trying to get employment with the Department of Veterans Affairs (VA) and he is not allowed to do so until his DD Form 214 is corrected.

3.  The applicant provides no additional documentation in support of this case.

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 Regular Army on 26 February 2003 and did not successfully complete basic training.  

3.  A DA Form 4856 (General Counseling Form), dated 17 March 2003, notes that the applicant was counseled for failure to pass two physical training (PT) assessments.

4.  A DA Form 4856, dated 4 April 2003 shows that the applicant was being counseled for failure to pass four PT assessments.

5.  On 14 April 2003, the applicant’s commander signed an elimination packet on the applicant for separation under the provisions of Army Regulation 635-200, chapter 11, entry-level status performance and conduct.  The reason cited by the commander was the applicant’s loss of all motivation and self-discipline necessary to become a productive Soldier.  His attitude was more focused on leaving the service instead of training.  The Soldier was a disruptive influence to other Soldiers in his position.  The document shows that if approved by the separation authority the applicant would receive an entry level separation with uncharacterized service.  On 14 April 2003, the applicant acknowledged notification of this action.  He indicated that he did not desire to consult with counsel and that he did not desire to make a statement in his behalf.

6.  On 15 April 2003, the appropriate authority approved the elimination packet and waiver of the rehabilitative transfer requirement and directed the applicant receive an "Uncharacterized Discharge" under the provisions of Army Regulation 635-200, chapter 11, for entry level performance and conduct.  He had completed 1 month and 23 days of creditable active service.  

7.  Item 24 (Character of Service) of the applicant's DD Form 214 for the period ending 26 February 2003 shows the entry "UNCHARACTERIZED"; item 
26 (Separation Code) shows a separation code of “JGA”; and item 28 (Narrative Reason for Separation) shows the entry "ENTRY LEVEL PERFORMANCE AND CONDUCT."

8.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 26 November 2008, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's reason for discharge was proper and equitable and that the discharge was properly characterized.



9. Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  Chapter 11 sets the policy and prescribes procedures for separating members who were voluntarily enlisted in the Regular Army, National Guard or Army Reserve, are in an entry-level status and, before the date of the initiation of separation action, have completed no more than 180 days of creditable continuous service, and have demonstrated that they are not qualified for retention.  The following conditions are illustrations of conduct that does not qualify for retention:  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; or have demonstrated character and behavior characteristics not compatible with satisfactory continued service.  

10.  Army Regulation 635-200, paragraph 1-16 states that when a Soldier’s conduct or performance approaches the point where a continuation of such conduct or performance would warrant initiation of separation action, he or she will be counseled about his or her deficiencies.  Before initiating separation action, commanders will ensure that the Soldier receives adequate counseling and rehabilitation in accordance with chapter 1, section II.  A responsible person will counsel the Soldier about his or her deficiencies at least once before initiating separation action.  Additional formal counseling is discretionary.  The counseling will be conducted per Army Regulation 350-21 (Instructions in Benefits of an Honorable Discharge).  It will be comprehensive and will include at least the reason for counseling, that separation action may be initiated if the behavior continues, and the type of discharge that could result form the possible separation action and the effect of each type.  Replacement stream Soldiers will be recycled (rehabilitated) at least once.  The requirement for a rehabilitative transfer may be waived by the separation authority.  Unless the reason for separation requires a specific characterization, a Soldier will be awarded an uncharacterized description of service if in an entry-level status.  (For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty.)

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded to an honorable discharge for him to gain employment with VA.  However, the ABCMR does not grant relief solely for gaining employment.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  A chapter 11 discharge is used for entry-level Soldiers not qualified for retention for one of several reasons, including if they cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline.  There was evidence, in the applicant's counseling's, to show he could not meet the minimum standards for successful completion of basic training.  The DA Forms 4856 showed that the regulatory counseling requirement was met.  

3.  It is acknowledged that some VA benefits and other benefits are dependent upon the type of discharge awarded and/or the length of service (total service and/or active duty service).  However, the uncharacterized discharge directed and the reasons therefore were appropriate considering all the facts of this case.  An uncharacterized discharge 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.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090008429





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ABCMR Record of Proceedings (cont)                                         AR20090008429



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