BOARD DATE:	  10 June 2010

		DOCKET NUMBER:  AR20090020634 


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, that the character of his service be changed from uncharacterized to honorable.

2.  The applicant states:

* He was "listed" as being allergic to grass
* His condition greatly hampered his ability to achieve his desired rank before reaching his retirement age
* When he was in the National Guard, he served under honorable conditions
* He did not receive any nonjudicial punishments or any other disciplinary actions while he was in the National Guard or while he was in the Regular Army (RA)
* He was promoted while he was on active duty
* Since he was released "under general discharge conditions," he is not eligible for benefits

3.  The applicant provides no additional documentation.

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.  With prior enlisted service in the Idaho Army National Guard, the applicant enlisted in the United States Army Reserve under the Delayed Entry Program on 27 November 1984.  He enlisted in the RA for 3 years on 13 March 1985, in the pay grade of E-1.

3.  The available records show that he was advanced to the pay grade of E-2 on 2 June 1985.

4.  The facts and circumstances pertaining to the applicant's discharge are not on file.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in the pay grade of E-1 on 3 September 1985, under the provisions of Army Regulation 635-200, chapter 13, due to unsatisfactory performance and his service was uncharacterized.  He had 5 months and 21 days of net active service this period.

5.  The available records do not show that the applicant ever petitioned the Army Discharge Review Board for a change to the character of his service within that board's 15-year statute of limitations.

6.  Army Regulation 635-200 (Enlisted Separations) sets forth the basic authority for the separation of enlisted personnel.  The 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 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.



7.  Army Regulation 635-200, paragraph 3-9a(1), states a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in an entry-level status, except when characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case.

8.  Entry-level status is defined as the first 180 days of continuous active duty or the first 180 days of continuous active service after a service break of more than 92 days of active service.

DISCUSSION AND CONCLUSIONS:

1.  There is no error in the character of service assigned to the applicant.  His DD Form 214 appropriately reflects the character of his service as uncharacterized.

2.  His contentions have been considered.  However, his contentions are not supported by the evidence of record.  His records show he was in an entry-level status at the time he was discharged from the Army for unsatisfactory performance.  His contentions are not sufficiently mitigating to warrant characterizing his service.  He had less than 180 days of continuous active duty service and in accordance with the applicable regulation, his service was uncharacterized.

3.  There is no evidence in the available records that shows at the time he was separated from the Army he was issued a general discharge.  

4.  The applicant has failed to show error or injustice in the fact that his service was uncharacterized.

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)                                         AR20090020634



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ABCMR Record of Proceedings (cont)                                         AR20090020634



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