BOARD DATE:	  1 April 2010

		DOCKET NUMBER:  AR20090011252 


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 change of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show her characterization of service as "honorable" instead of "uncharacterized" and her separation code as "KDP" for hardship instead of "JGA" for entry-level status.

2.  The applicant states she was assured during outprocessing that her “uncharacterized” discharge would automatically be changed to an honorable discharge within 6 or 12 months after her discharge was completed.  She is currently looking for employment with the Government and she would like her discharge to reflect an honorable discharge.  She states that she left the Army after the miscarriage of her first child.  She was without family, mourning the loss of her first child, and the grief was too much for her to endure.  She further states that item 26 (Separation Code) on her DD Form 214 shows the code “JGA” for “entry level status performance and conduct - pregnancy” (sic - her DD Form 214 actually shows the entry “Entry Level Status”).  She finally states that this entry validates her statements.

3.  The applicant provides a copy of her DD Form 214 in support of her 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 enlisted in the Regular Army on 11 September 1992 for a period of 5 years.

3.  On 8 March 1993, the company commander notified the applicant of pending separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, for entry level status performance and conduct.  The company commander indicated that the applicant displayed and had been evaluated for showing a failure to adapt to military life.  The applicant consulted with legal counsel and did not submit statements in her own behalf.

4.  On 10 March 1993, the separation authority directed the applicant be discharged under the provisions of Army Regulation 635-200, chapter 11, with issuance of an uncharacterized entry level status discharge.

5.  Accordingly, the applicant was discharged on 6 April 1993 under the provisions of Army Regulation 635-200, chapter 11, for entry level performance and conduct with an uncharacterized discharge.  She completed 6 months and 26 days of active military service.

6.  Item 26 of her DD Form 214 shows a separation code of “JGA” [Entry Level Performance and Conduct].

7.  Item 28 (Narrative Reason for Separation) of her DD Form 214 shows the narrative reason as “Entry Level Status.”

8.  There is no evidence of record which shows the applicant applied for a hardship discharge.

9.  Army Regulation 635-200, chapter 11, establishes policy and prescribes procedures for separating members because of unsatisfactory performance or conduct (or both) while in an entry level status.  It states, in pertinent part, that 
separation under this chapter applies to Soldiers who are in an entry level status and, before the date of the initiation of separation action, have completed no more than 180 days of continuous active duty and have demonstrated that they cannot or will not adapt socially or emotionally to military life.  Entry level status is defined as the first 180 days of continuous active duty.  It further states that the character of service for members separated under the provisions of this chapter will be uncharacterized.

10.  Chapter 6 of Army Regulation 635-200 governs separation because of dependency or hardship.  The regulation provides that hardship exists when, in circumstances not involving death or disability of a member of a Soldier’s (or spouse’s) immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship.

11.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation, in effect at the time, shows that SPD code “JGA” as shown on the applicant’s DD Form 214 specifies the narrative reason for discharge as "Entry Level Performance and Conduct” and that the authority for discharge under this SPD is “A[rmy] R[egulation]
635-200, Chapter 11."

12.  Army Regulation 635-5 (Separation Documents) establishes the policies and procedures for completion and distribution of the DD Form 214.  In pertinent part, it states that item 28 (Narrative Reason for Separation) will list the narrative reason for separation based on regulatory or other authority and can be checked against the cross-reference table in Army Regulation 635-5-1.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she was assured that her “uncharacterized” discharge would automatically be changed to an honorable discharge within 6 or 12 months after her discharge.  However, the U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

2.  The applicant’s statements regarding her request for an upgrade to honorable to obtain employment in the Government are acknowledged.  However, employment is not a sufficiently mitigating factor to grant relief in this case.

3.  The applicant’s contentions regarding the reasons she left the Army and the affects of the miscarriage of her first child were also acknowledged.  Unfortunately, there is no evidence of record which shows the applicant submitted a request for a hardship discharge or that she met the criteria for a hardship discharge.

4.  The applicant was in an entry level status at the time of her separation from active duty because she had served fewer than 180 days of active Federal service when her separation action was initiated.  The determination that the applicant’s service was uncharacterized was in compliance with Army regulation governing separations of Soldiers while in an entry level status.  The applicant’s uncharacterized discharge is not a bad discharge; it only means she did not serve on active duty long enough to be evaluated.  Therefore, the applicant's 
DD Form 214 properly reflects her character of service as uncharacterized.

5.  In accordance with the preparation instructions for item 28 of the DD Form 214, the narrative reason for separation is taken from Army Regulation 635-5-1.  Therefore, the correct narrative reason for separation as provided in Army Regulation 635-5-1 was properly entered on her DD Form 214.

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)                                         AR20090011252



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ABCMR Record of Proceedings (cont)                                         AR20090011252



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