IN THE CASE OF:	  

		BOARD DATE:	  18 February 2010

		DOCKET NUMBER:  AR20090014778


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 honorable discharge.

2.  The applicant states he was told his discharge would be upgraded to honorable after 6 months.  He adds he hurt his back and was told he would go home on convalescent leave, but that didn't happen.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a handwritten letter.

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 US Army Reserve Delayed Entry Program (DEP) for 8 years on 27 September 1985.  On 29 September 1985, he was discharged from the DEP and enlisted in the Regular Army for 3 years on 30 September 1985.

3.  The applicant was sent to Fort Knox, KY for basic training, which started on or about 3 October 1985.  On 18 November 1985, his unit commander initiated administrative action to separate him for lack of character, integrity, self-discipline, commitment, and desire to be a Soldier.  Between 3 October and 
18 November, he received 14 negative counseling statements for lying, being disrespectful, disobedient, and a lack of motivation, etc.

4.  On 20 November 1985, the approving authority approved the applicant's discharge under the provisions of chapter 11, Army Regulation (AR) 635-200 for entry level separation.  The approving authority stated:

I have personally interviewed PVT [Applicant] and found that:  PVT [Applicant] is a 23 year old…single, high school graduate.  There is no question that PVT [Applicant] wants prestige, to be a Soldier, to accomplish great things; unfortunately, he doesn't want to work to expend the energy necessary to achieve his goals.  In fact, he expends his time and talents on finding ways to avoid training, and when he is caught, he continues to rationalize his behavior to whomever will listen.  He lacks the work ethic, motivation and self discipline to achieve success in a military environment, and his behavior characteristics are not compatible with further continued service.

5.  On 25 November 1985, after just 1 month and 26 days, the applicant's 3-year enlistment was terminated and he was discharged under the provisions of Army Regulation 635-200, chapter 11, paragraph 11-3a(3)c for entry level performance and conduct.

6.  Concerning the applicant's statement about convalescent leave, a DA Form 4856-R (General Counseling Form), dated 2 November 1985, states that he was afforded a period of convalescence due to back, hip, and leg problems.  This convalescence consisted of light duty, not leave.



7.  There is no record the applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade within that board's 15-year statute of limitations.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of the regulation then in effect set policy and provided guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in an entry level status.  Entry level status was defined as 180 days or less of continuous active duty.

9.  Army Regulation 635-200, paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant wants his "automatic upgrade" which he was supposed to receive 6 months after discharge.

2.  The applicant enlisted for 3 years.  He spent less than 2 months on active duty as a basic training Soldier, during which time he shirked his duty, lied, disobeyed and disrespected superiors, and was a substandard Soldier.

3.  The applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

4.  The US 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 submits an application requesting a change in discharge.  

5.  Concerning his alleged convalescent leave, the applicant was given light duty during basic training in order to recover, or convalesce from his medical issues.  He was never given convalescent leave or sent home to convalesce.



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)                                         AR20090014778



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090014778



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1