BOARD DATE:	  10 June 2010

		DOCKET NUMBER:  AR20090020082 


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 upgrade of his uncharacterized discharge.

2.  The applicant states he is requesting an upgrade of his discharge so he can obtain medical benefits.

3.  The applicant provides no documentary evidence in support of 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's record shows he enlisted in the Regular Army on 3 September 1993, and was assigned to Fort Sill, OK, to attend initial entry training.  His record documents no acts of valor or significant achievement.
3.  The applicant's disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on the following two separate occasions for the offenses indicated:

	a.  7 December 1993, for failing to go at the time prescribed to his appointed place of duty and

	b.  25 January 1994, for failing to go at the time prescribed to his appointed place of duty.

4.  The applicant's record also shows members of his chain of command counseled him on 16 separate occasions for myriad of infractions that included the following:

* Missing formations on multiple occasions
* Lost identification card
* Disobeying orders on multiple occasions
* Unsatisfactory attitude
* Unsatisfactory self-discipline
* Unsatisfactory academic performance
* Unsatisfactory off duty conduct

5.  On 28 January 1994, the unit commander notified the applicant of his intent to initiate action to separate him under the provisions of Army Regulation 635-200, chapter 11, by reason of entry level status (ELS) performance and conduct.  The unit commander cited the applicant's NJP record, lack of military bearing, lack of discipline, and lack of motivation as the reasons for initiating the separation action.

6.  On 28 January 1994, the applicant acknowledged receipt of the separation action notification and elected not to submit a statement in his own behalf.

7.  On 4 February 1994, the separation authority approved the applicant's ELS separation under the provisions of Army Regulation 635-200, chapter 11.  On
9 February 1994, the applicant was discharged accordingly.

8.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on 9 February 1994 shows he completed 5 months and 
7 days of creditable active service.

9.  There is no evidence indicating the applicant applied to the Army Discharge Review Board (ADRB) for a change to his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-9 contains guidance on ELS separations.  It states, in pertinent part, that a separation will be described as entry-level with service uncharacterized if at the time separation action is initiated, the Soldier has less than 180 days of continuous active duty service.

11.  Chapter 11 of the separations regulation provides for the separation of personnel due to unsatisfactory performance, conduct, or both, while in an ELS.  An uncharacterized service description is normally granted to Soldiers separating under this chapter.  A general, under honorable conditions discharge is not authorized under ELS conditions.  An honorable discharge may be given only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be upgraded so he can obtain medical benefits has been carefully considered.  However, eligibility for benefits is not a basis for upgrading a discharge.

2.  The evidence of record confirms that separation action was initiated on the applicant while he was in ELS prior to his completing 180 days of continuous active service.  The record further shows that the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The record also shows the applicant's service was described as uncharacterized as a result of his being separated while in ELS.  A Soldier is in ELS, or probationary period, for the first 180 days of continuous active duty.  The issue of a general discharge to members in ELS is not authorized, and an honorable discharge may be granted only in cases that are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.  Given no such unusual circumstances are present in the applicant’s record, there is an insufficient evidentiary basis to support any change to his uncharacterized service.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  The granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.

5.  An uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service.  It merely means that the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise.

6.  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.

7.  In view of the foregoing, there is no basis for granting the applicant's requested 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)                                         AR20090020082



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ABCMR Record of Proceedings (cont)                                         AR20090020082



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