IN THE CASE OF:	

		BOARD DATE:	1 December 2009  

		DOCKET NUMBER:  AR20090011906 


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 correction of his service from "Entry Level Status" to "Honorable." 

2.  The applicant states that his father was having medical problems at the time and that his leg was amputated.  He adds that he was the only son who lived with him and that he requested a discharge for hardship but his lieutenant denied it.  He also states that he served because he thought his country needed him; however, when he needed understanding the military shunned him.  He feels that he should be given an honorable discharge because he has had to live with this for over 20 years and it has cost him many opportunities.

3.  The applicant did not provide any additional documentary evidence 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 4 years on 22 July 1986 and proceeded to his one station unit training (OSUT) at Fort Jackson, SC.  He was assigned to Company A, 1st Battalion, 1st Basic Training Brigade, where he completed basic combat training and was subsequently reassigned to Company E, 12th Battalion, 4th Combat Support Training Brigade, for completion of advanced individual training.

3.  The applicant's records contain an extensive history of counseling by various members of his chain of command for various issues including lack of motivation or desire to become a Soldier, failing the Army Physical Fitness Test (APFT), negative attitude about the Army, expressing a desire to get out of the Army, immature attitude, and lack of self-discipline.

4.  On 15 December 1986, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 11 (Trainee Discharge Program) of Army Regulation 635-200 (Personnel Separations).  Specifically, the immediate commander stated that the applicant lacked the desire and motivation to become a productive Soldier in the Army and had displayed a quitter attitude since his arrival to the unit.  He failed the run event of the APFT and on retake, he quit running after running only one lap around the track.

5.  On 15 December 1986, the applicant acknowledged receipt of the notification of separation action.  He was advised of the basis for his contemplated separation and its effects, the rights available to him, and the effects of a waiver of his rights.  He also acknowledged that he understood that if his discharge was approved, he would receive an entry level separation with an uncharacterized service.  He further acknowledged that Department of Veterans Affairs and other benefits normally associated with completion of active service would be affected. He elected not to consult with counsel, elected not to make a statement or submit a rebuttal in his behalf, and waived a separation medical examination.

6.  On 15 December 1986, by endorsement, the applicant’s immediate commander recommended the applicant be separated from the Army under the provisions of chapter 11 of Army Regulation 635-200 for lack of motivation and desire to become an effective Soldier.  The immediate commander further remarked that further counseling and/or rehabilitative efforts would not result in the quality of Soldier desired by the Army. 


7.  On 15 December 1986, the applicant's intermediate commander also recommended approval of the applicant's discharge and remarked that the applicant's motivation and attitude were not conducive to continued military service.

8.  On 17 December 1986, the separation authority reviewed the proposed separation action and approved an entry level separation (uncharacterized) in accordance with chapter 11 of Army Regulation 635-200.  The applicant was accordingly discharged on 22 December 1986.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time of his discharge confirms he was discharged under the provisions of paragraph 11-3a of Army Regulation 635-200 and his characterization of service was Entry Level Status, or Uncharacterized.  This form further confirms that he completed a total of 5 months and 1 day of creditable active military service.  Item 26 (Separation Code) of this form show the entry "JGA" and item 28 (Narrative Reason for Separation) shows the entry "Entry Level Status Performance and Conduct."

9.  Army Regulation 635-200 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.

10.  Chapter 3 of Army Regulation 635-200 describes the different types of characterization of service.  It states 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 entry-level status, except when characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case or when the Secretary of the Army, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.

11.  Army Regulation 635-5-1 (Personnel Separation Designator Codes) states that the Separation Program Designator (SPD) codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of DOD and the military services to assist in the collection and analysis of separation data.  In the version of this regulation in effect at the time, SPD code "JGA" was used for Regular Army Soldiers separated under chapter 11, entry level status-performance and conduct.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that while in OSUT, the applicant demonstrated character and behavior characteristics—lack of motivation and/or desire to become an effective Soldier-- not compatible with satisfactory continued service. 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.

2.  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 is approved by the Secretary of the Army.  

3.  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.

4.  The regrettable medical condition of the applicant's father is noted.  However, there is no evidence in his records that he submitted a request for a hardship discharge.   Furthermore, there is no evidence in the available records and the applicant did not provide any evidence to substantiate an upgrade of his discharge.  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.

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  

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)                                         AR20090011906



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ABCMR Record of Proceedings (cont)                                         AR20090011906



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