BOARD DATE: 15 October 2009
DOCKET NUMBER: AR20090009508
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 his uncharacterized discharge be changed to a general discharge.
2. The applicant states he believes the characterization of his service was unfair because he was discharged rather than given a chance to "recycle." He adds that he was taken out in the sixth week of basic training.
3. The applicant provides no additional documentary evidence in support of this application. transferred
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 applicants 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 applicants 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 Army National Guard on 28 October 1998. He was ordered to initial active duty for training effective 28 January 1999 for completion of basic and military occupational specialty training.
3. On 11 March 1999, the applicant's commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, due to entry level performance and conduct. The commander cited as the specific reasons for his proposed action the applicant's inability to master basic tasks since arriving in the company, even with extra attention and training from the Drill Sergeants, and that after the applicant failed his phase I test, he was referred to behavioral medicine who concluded the applicant had some type of learning disability which made it impossible for him to complete basic training at the time.
4. On 22 March 1999, the separation authority approved waiver of the applicant's rehabilitative transfer; approved the discharge under the provisions of Army Regulation 635-200, chapter 11, and directed the applicant's return to his Army National Guard Unit.
5. On 25 March 1999, the applicant was released from active duty for training, discharged from the Reserve of the Army, and returned to his Army National Guard Unit. He completed 1 month and 28 days of active duty service. He was given a character of service of Uncharacterized.
6. The applicant was discharged from the Army National Guard effective
26 March 1999.
7. The Army Discharge Review Board disapproved the applicant's request for a change of his character of service on 3 August 2005.
8. Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel. Chapter 11 provides the policies and procedures for separating individuals who are in an entry level status (180 days or less) who cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline. It provides that service under this provision will be uncharacterized unless the Secretary of the Army determines that a characterization of honorable is warranted by unusual circumstances involving personal conduct and performance of duty.
9. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his uncharacterized discharge should be changed to a general discharge.
2. The applicant did not complete 180 days of continuous active service prior to being discharged. Therefore, his records are correct as currently constituted and there is no basis to change the applicant's character of service as requested.
3. 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.
4. For the applicant's information, 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.
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.
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