IN THE CASE OF:
BOARD DATE: 16 March 2010
DOCKET NUMBER: AR20090016411
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, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his service is characterized as general under honorable conditions.
2. The applicant states he was discharged while attending basic training, due to having a broken foot which is a medical reason.
3. The applicant provides a DD Form 214.
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. The applicant's military records show he enlisted in the Regular Army on 17 April 1990. He did not complete basic training and he was not awarded a military occupational specialty.
3. The applicant's records show he had a possible stress fracture in his foot while attending initial entry training, but there is no evidence he had a broken foot.
4. The applicant's separation documents show he was recommended for an entry level separation due to displaying a lack of motivation and effort to pass the diagnostic Army Physical Fitness Test and because he showed no desire to remain in the military. He was advised of the basis for the contemplated separation action and its effects. He declined to make a statement on his own behalf and to have a medical examination.
5. On 30 July 1990, the applicant was discharged under the provisions of paragraph 11-3 of Army Regulation 635-200 (Personnel Separations Enlisted Separations) while in an entry level status with uncharacterized service.
6. Army Regulation 635-200, paragraph 3-9 provides that a separation will be described as entry-level with service "uncharacterized" if processing is initiated while a Soldier is in entry-level status. Paragraph 11-3 of this regulation provides that this separation policy applies to Soldiers who:
a. are in entry-level status, undergoing initial entry training, and, before the date of the initiation of separation action, have completed no more than 180 days of creditable continuous active duty.
b. have demonstrated that they are not qualified for retention. The following conditions are illustrations of conduct and/or performance that disqualify Soldiers for retention:
(1) Cannot or will not adapt socially or emotionally to military life.
(2) Cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline.
(3) Have demonstrated character and behavior characteristics not compatible with satisfactory continued service.
(4) Have failed to respond to counseling (DA Form 4856R).
7. Army Regulation 635-5 prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for the preparation of the DD Form 214. It states the DD Form 214 is a synopsis of the Soldiers most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.
8. On 9 November 1995, the Army Discharge Review Board denied the applicant's request to change his character of service from uncharacterized to honorable.
DISCUSSION AND CONCLUSIONS:
Based on available records and regulatory policy the applicant's DD Form 214 appears to be correct as constituted. As such, there is insufficient 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) AR20090016411
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