IN THE CASE OF:	

		BOARD DATE:	  08 April 2010

		DOCKET NUMBER:  AR20090017679 


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 his uncharacterized discharge be upgraded to a fully honorable discharge.

2.  The applicant states that he should have received an honorable discharge because he completed his basic and advanced individual training even with a back and foot injury that he received from carrying tank rounds.  He also states that he was in perfect health when he entered the service.

3.  The applicant provides no additional documents with his application.

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 Regular Army in Chicago, Illinois, on 10 April 1990 for a period of 4 years and training as an armor crewman.  He was transferred to Fort Knox, Kentucky, to undergo one-station unit training (OSUT).

3.  On 23 April 1990, nonjudicial punishment (NJP) was imposed against him for being disrespectful in deportment towards a superior noncommissioned officer (NCO) and walking off of a training site.

4.  On 17 July 1990, NJP was imposed against him for disobeying a lawful order from a superior NCO.

5.  During the period 18 April 1990 to 18 July 1990, the applicant received individual counseling sessions on at least 13 occasions regarding failures of Army Physical Fitness Tests, disobedience, disrespect, lack of motivation, severe attitude, failure to follow orders, failure to prepare for inspection, disobeying lawful orders, dereliction of duty, and being late for formations.

6.  On 20 July 1990, the applicant's commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 11, due to entry-level conduct and performance.  He informed the applicant that his demonstrated character and behavior characteristics were not compatible with satisfactory continued service, nor were his unwillingness to adapt to the military regimen or environment and his demonstrated lack of self-discipline and inability to follow instruction.  After consulting with counsel, the applicant declined the opportunity to submit a statement in his own behalf and he declined a separation medical examination.

7.   The appropriate authority approved the recommendation for discharge on 1 August 1990 and directed that he not be transferred to the U.S. Army Reserve Individual Ready Reserve due to his lack of potential for useful service under conditions of full mobilization as evidence by his disruptive attitude and unwillingness to follow instructions.

8.  Accordingly, he was discharged on 6 August 1990 under the provisions of Army Regulation 635-200, paragraph 11-3a, due to entry-level status.  He had served 3 months and 27 days and his service was uncharacterized.

9.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for a change of his characterization of service within that board's 15-year statute of limitations.

10.  A review of his records indicates that he did not complete OSUT nor was he ever awarded a military occupational specialty.

11.  Army Regulation 635-200, chapter 11, provides the policies and procedures for separating individuals who are in an entry-level status (180 days or less) who cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline.  It provides that service under this provision will be uncharacterized unless the Secretary of the Army determines that a characterization of honorable is warranted by unusual circumstances involving personal conduct and performance of duty.

DISCUSSION AND CONCLUSIONS:

1.  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 this requirement.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would tend to jeopardize his rights.  Accordingly, the type of discharge directed and the reasons were appropriate considering all of the available facts of the case.

3.  Inasmuch as he had less than 180 days of active service during his current enlistment, his service was properly uncharacterized and there appears to be no basis to characterize it as honorable.

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)                                         AR20090017679



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ABCMR Record of Proceedings (cont)                                         AR20090017679



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