BOARD DATE:	  19 May 2010

		DOCKET NUMBER:  AR20090018892 


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 his uncharacterized discharge be upgraded to an honorable discharge.  He also requests that item 14 (Military Education) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to reflect the completion of his military training.

2.  The applicant states he never thought about the effect that his discharge would have on his future at the time of separation.  He contends that he went absent without leave (AWOL) to stay with his girlfriend of 3 years when she went into labor.  He was on a weekend leave at the time and states that he tried to contact his unit to tell them of the situation, but to no avail.  He then resorted to contacting the Red Cross and the base switchboard to be connected to his barracks, but no one answered.  He states that he left a message with the switchboard operator and was assured the message would be delivered.  He stayed until the birth of his child and returned to base to find that no one was told of the situation.  He felt anger with his superiors that he was being treated as a liar.  Now at the age of 39 he sees that he was young and immature in his decisions.  He wants to become a police officer in the state of Tennessee.  He points out that his current discharge status of uncharacterized is not acceptable for the application for police officer.  He contends that he has no need of veterans' benefits for medical, mental, or any other disability.  His current occupation is as a truck driver and he has been in this vocation for the past 11 years.

3.  The applicant provides a copy of his completion of basic combat training certificate and a copy of his advanced individual training (AIT) course completion certificate.

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 on 11 February 1993 for a period of 4 years.  He successfully completed basic combat training.  He attended AIT for military occupational specialty 31F (Network Switching Systems Operator/Maintainer).  Item 17 (Civilian Education and Military Schools) of his DA Form 2-1 (Personnel Qualification Record) indicates that the applicant did not complete his AIT.

3.  His records show that on 25 May 1993 he was formally counseled for missing the company physical training 0430 formation.  On 29 June 1993, he was counseled for failing his end of course Army Physical Fitness Test and was informed that he could possibly be separated from the Army.

4.  On 23 July 1993, nonjudicial punishment was imposed against the applicant for being AWOL from 6 July 1993 through 11 July 1993.  His punishment consisted of a forfeiture of $407.00 per month for 2 months and 45 days of extra duty and restriction.

5.  On 3 August 1993, the command initiated a chapter 11, Army Regulation 
635-200 (Enlisted Personnel), action for unsatisfactory performance and misconduct.  The applicant was counseled and indicated that he did not desire to consult with counsel or to make a statement on his own behalf.  He also declined to request a separation physical.

6.  The separation authority approved the request for separation under the provisions of Army Regulation 635-200, chapter 11.  He directed that the applicant be issued a DD Form 214 with an entry-level separation – uncharacterized.

7.  Accordingly, the applicant was discharged on 13 August 1993 under the provisions of Army Regulation 635-200, chapter 11, entry-level status performance and conduct.  He had served a total of 5 months and 28 days of creditable active service and had 5 days of lost time due to AWOL.  His service was uncharacterized.

8.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board (ADRB) within that board's 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of this regulation, in effect at the time, provided for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry-level status.  This provision of the regulation applied to individuals who had demonstrated that they were not qualified for retention because they could not adapt socially or emotionally to military life; or because they lacked the aptitude, ability, motivation, or self discipline for military service; or they had demonstrated characteristics not compatible with satisfactory continued service.  The separation policy applied to Soldiers who could not meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline.  The regulation required an uncharacterized description of service for separation under this chapter.

10.  Army Regulation 635-200 stated that separation under chapter 11 applied to Soldiers who were in an entry-level status and completed no more than 180 days of continuous active duty before the date of the initiation of separation action and demonstrated that they could not or would not adapt socially or emotionally to military life.

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

12.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 states that item 14 shows the completion of military education.  It lists formal in-service (full-time attendance) training courses successfully completed during the period of service covered by the DD Form 214.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been considered and are not supported by the evidence of record.

2.  His records show he was counseled on more than one occasion for misconduct and poor performance of duty.  These infractions coupled with the charge of AWOL do not demonstrate the behavior which would warrant a characterization of honorable service.  Therefore, he was properly discharged under Army Regulation 635-200, chapter 11, as entry-level status performance and conduct, uncharacterized, and is not entitled to an upgrade of his character of service.

3.  The applicant's claim of good post-service conduct and desire to become a law enforcement officer is noted.  However, it does not sufficiently mitigate his act(s) of indiscipline during his military service.

4.  The applicant's records show he was counseled on 3 August 1993 for separation under chapter 11, Army Regulation 635-200, and was separated on 13 August 1993.  The course completion certificate indicates he completed training on 9 August 1993.  It is presumed that the applicant was removed from all military training on the date his separation packet was initiated.  He is also noted as having 5 days of lost time in which he did not attend training.  It is reasonable to presume that the certificates were printed prior to the date of graduation as a standard administrative practice.  Therefore, he is not entitled to the addition of the completion of AIT in item 14 of his DD Form 214.

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)                                         AR20090018892



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ABCMR Record of Proceedings (cont)                                         AR20090018892



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