IN THE CASE OF:
BOARD DATE: 17 December 2009
DOCKET NUMBER: AR20090012954
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 her uncharacterized discharge be upgraded to honorable.
2. The applicant states that she was discharged for medical reasons.
3. The applicant provides, in support of her application, copies of her DD Form 214 (Certificate of Release or Discharge from Active Duty), twp pages of her
DA Form 2-1 (Personnel Qualification Record Part II), and four pages of medical records from the Department of the Veterans Affairs.
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. On 5 October 1990, the applicant enlisted in the Regular Army for 5 years. The applicant completed basic combat training and was subsequently assigned to Fort Rucker, Alabama, for advanced individual training in military occupational specialty (MOS) 93P (Aviation Operations Specialist).
3. On 9 January 1991, at a mental status evaluation the applicant's behavior was normal. She was fully alert and oriented and displayed an unremarkable mood. Her thinking was clear, her thought content normal, and her memory good. There was no significant mental illness. The applicant was mentally responsible. She was able to distinguish right from wrong and to adhere to the right and capable of participating in the separation processing.
4. On 15 January 1991, the applicants commander recommended that she be separated from the service under the provisions of Army Regulation 635-200, Chapter 11, for behavior characteristics not compatible with satisfactory continued service. The commander further stated that the applicant cannot or will not adapt to the military environment and will not develop to become a satisfactory Soldier.
5. On 15 January 1991, the applicant consulted with counsel, and elected not to make a statement in her own behalf and requested consulting counsel.
6. On 15 January 1991, the appropriate authority approved the recommendation and directed that the applicant be discharged in an Entry Level Status with an uncharacterized character of service. She was accordingly discharged on
22 January 1991. She had completed 3 months and 18 days of creditable active duty service.
7. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
8. Army Regulation 635-200 (Personnel Separations), 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that her separation was due to her medical condition and that she should have received an honorable characterization of service.
2. The applicants administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.
3. The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.
4. The available evidence of record clearly shows that the applicant was discharged within 180 days of her enlistment and was accordingly processed for separation under the regulatory provisions for entry level status performance and conduct.
5. 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 the aforementioned requirement.
6. 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) AR20090012954
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ABCMR Record of Proceedings (cont) AR20090012954
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