IN THE CASE OF:	

		BOARD DATE:	  23 March 2010

		DOCKET NUMBER:  AR20090013555 


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 an upgrade of his uncharacterized discharge to honorable.

2.  The applicant states, in effect, that he had met all of the requirements for an honorable discharge and he was recommended for an honorable discharge.  However, he was issued an uncharacterized discharge that prevents him from receiving Department of Veterans Affairs (VA) benefits and makes it difficult for him to obtain employment.

3.  The applicant provides, in support of his application, copies of his DD form 214 (Certificate of Release or Discharge from Active Duty) and the Army Discharge Review Board (ADRB) Case Report and Directive, dated 
22 December 2008.

CONSIDERATION OF EVIDENCE:

1.  On 1 July 2002, the applicant enlisted in the Regular Army.  He was subsequently assigned to Fort Benning, Georgia, for basic combat training.

2.  On 20 September 2002, the applicant commenced advanced individual training (AIT) at Fort Gordon, Georgia.




3.  Available records show the applicant was discharged from active duty on 
23 December 2002 due to a defective enlistment agreement.  The specifics concerning the defect are not in the available records.  The applicant had not completed AIT and he was not awarded a military occupational specialty (MOS).  He was still in an entry-level status.

4.  The applicant's DD Form 214 shows that he had completed 5 months and 
23 days of creditable active duty service determined to be uncharacterized.  He was assigned a separation program designator (SPD) code of KDS to show he was voluntarily separated due to a defective enlistment agreement.

5.  On 2 November 2003, the applicant enlisted in the North Dakota Army National Guard.  He was ordered to initial active duty for training (IADT) commencing on 19 May 2004.   He completed the Water Treatment Specialist Course and was awarded the MOS 92W.  Effective 6 August 2004, he was released from IADT and returned to his unit.  This period of IADT service was uncharacterized.

6.  On 28 February 2006, the applicant was separated from the North Dakota Army National Guard and as a Reserve of the Army, under the provisions of paragraph 8-5b, National Guard Regulation 600-200 (Army National Guard Enlisted Personnel Management).  The circumstances for this separation are not in the available records.  His service was not characterized.

7.  On 17 December 2008, the ADRB considered the applicant's request to upgrade his discharge.  The ADRB determined that his discharge was proper and equitable and denied his request.

8.  On 2 June 2009, the applicant, in response to the ADRB decision stated that:

	a.  his enlistment agreement was defective because he was not a United States citizen and would not be eligible to obtain the required security clearance for his communications MOS;

	b.  he was promised an honorable characterization of service;

	c.  his uncharacterized service is harmful to because he cannot access VA benefits and employers will perceive it as a blemish on his character; and

	d.  the process of becoming a United States citizen will be hindered by having a discharge that does not show his service as honorable.

9.  Army Regulation 635-200 (Personnel Separations) provides policy and prescribes procedures for separating enlisted members.  Paragraph 7-16 states that an unfulfilled enlistment commitment exists when the Soldier receives a written enlistment agreement for which he is qualified but which the Army cannot fulfill through no fault of the Soldier.  Soldiers separated under this provision may be awarded an honorable characterization of service if they are not in an entry level status.

10.  Paragraph 3-4 of this same regulation states that a separation will be described as uncharacterized if processing is initiated while a Soldier is in an entry-level status, except when:

   a.  characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case;

   b.  it is determined that characterization of service as honorable is
clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty; and

   c.  the Soldier has less than 181 days of continuous active military service, has completed initial entry training, has been awarded an MOS, and has reported for duty at a follow-on unit of assignment.

11.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The SPD code of KDS was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of AR 635-200, Chapter 7 due to a defective enlistment agreement.  It further shows that this is a voluntary separation.
12.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) paragraph 2-9 provides that the Board begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he had met all of the requirements for an honorable discharge and he was recommended for an honorable discharge.  However, he was issued an uncharacterized discharge that prevents him from receiving VA benefits and makes it difficult for him to obtain employment.
2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  

3.  The available evidence of record clearly shows the applicant was discharged within 180 days of his enlistment, had not been awarded an MOS, and did not report to a follow-on assignment.  Therefore, he was clearly in an entry-level status at the time of his separation.  Furthermore, there is no evidence showing that there were any unusual circumstances warranting consideration for an honorable characterization of service or for an exception to the normal procedure.

4.  The applicant's separation was voluntary, meaning that he was most likely given the opportunity of retraining into another MOS that did not require a security clearance.  

5.  Entitlement to VA benefits is not within the purview of this Board nor is it normally considered a basis for granting relief.

6.  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.

7.  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)                                         AR20090013555



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ABCMR Record of Proceedings (cont)                                         AR20090013555



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