IN THE CASE OF:	

		BOARD DATE:	  4 March 2010

		DOCKET NUMBER:  AR20090016403 


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 the characterization of service on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from uncharacterized to general under honorable conditions or honorable.

2.  The applicant states that he was in the Army for 5 months.  He did not get in trouble during his military service and was only 10 days away from completing 6 months of active service.  He had to leave the Army because his mother had a brain tumor and there was no one else to take care of her.  He was told he would receive an honorable character of service but did not.  The current character of service does not allow him to receive medical benefits.  He is in need of medical care.

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 on 23 August 1989.  He completed basic combat training at Fort Jackson, SC, on or about 29 October 1989 and proceeded to Fort Gordon, GA for completion of advanced individual training in military occupational specialty (MOS) 31M (Multichannel Transmission Systems Operator).

3.  On 29 November 1989, the applicant was referred for an evaluation at the Community Mental Health Service, Fort Gordon, GA, due to decreased concentration and motivation in class, difficulty sleeping, and becoming socially isolated.  He was diagnosed with adjustment disorder with depressed mood and dependent personality features.  The military social worker remarked that his condition was not amenable to hospitalization, treatment transfer, disciplinary action, training reclassification, or rehabilitation and recommended his administrative separation.

4.  On 7 December 1989, the applicant was counseled by his platoon sergeant for not performing to capability, desire to be separated, and missing too many training hours.

5.  On 12 December 1989, the applicant expressed the need to be discharged from the Army due to his mother's illness during a counseling session with his platoon sergeant.

6.  On 14 December 1989, the applicant was counseled by his cadre for failing weeks 5 and 6 of his MOS training.

7.  On 3 January 1990, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of chapter 11 of Army Regulation 635-200 (Personnel Separations) by reason of unsatisfactory performance, inability to adapt to a military life, and poor motivation.  The immediate commander remarked that if the recommendation was approved, the applicant would receive an entry-level separation with uncharacterized service.

8.  On 3 January 1990, the applicant acknowledged receipt of the notification of the proposed separation action in accordance with chapter 11 of Army Regulation 635-200.  He further declined to consult with counsel and elected not to submit a written statement on his own behalf.

9.  On 3 January 1990, the immediate commander initiated separation action against the applicant for unsatisfactory performance in accordance with chapter 11 of Army Regulation 635-200.  The commander stated that the applicant could not adapt socially or emotionally to military life and could not meet the minimum standards for successful completion of training because of his lack of attitude, ability, motivation, or self-discipline.

10.  On 5 January 1990, the separation authority waived the rehabilitation requirements, approved the applicant's discharge from the Army for unsatisfactory performance, and directed he receive an entry-level separation with an uncharacterized service.  Accordingly, the applicant was discharged on 10 January 1990.  The DD Form 214 he was issued confirms he was released from active duty for in accordance with chapter 11 of Army Regulation 635-200 with an uncharacterized character of service.  This form also shows that he completed 4 months and 18 days of creditable active military service.

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  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 the current enlistment by the date of separation and 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.

13.  Chapter 3 of Army Regulation 635-200 describes the different types of characterization of service.  It provides, in pertinent part, that an uncharacterized separation is an entry-level separation.

	a.  A separation will be described as an entry-level separation if processing is initiated while a member is in an entry-level status, except when the characterization of under other than honorable conditions is authorized or when the Secretary of the Army, on a case-by-case basis, determines that a honorable discharge is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.  For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break in service of more than 92 days of active military service.

	b.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  A general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the characterization of service on his DD Form 214 should be changed from uncharacterized to general under honorable conditions or honorable.

2.  The evidence of record indicates the applicant lacked motivation and was unable to cope with the military lifestyle.  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.  

3.  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 it is approved by the Secretary of the Army.

4.  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.

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  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.  Therefore, he is not entitled to relief.

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)                                         AR20090016403



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ABCMR Record of Proceedings (cont)                                         AR20090016403



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