IN THE CASE OF:	  

		BOARD DATE:	  15 July 2010

		DOCKET NUMBER:  AR20090021266 


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 upgrade of her uncharacterized discharge to an honorable discharge.

2.  The applicant states she was 17 years old when she separated from the Army.  She was told her uncharacterized discharge didn’t make any difference as long as it was not dishonorable.  She did not find out until December 2007 when her vocational rehabilitation counselor informed her she was ineligible for a Federal job based on the type of discharge she received.

3.  The applicant provides a print screen from the Beneficiary Identification and Records Locator Subsystem (BIRLS) Veterans Identification database indicating she received an honorable characterization of service upon her discharge.

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 7 August 1992.

3.  The applicant's records show she was administered the Army Physical Fitness Test (APFT) on 3 separate occasions between 20 October 1992 and
10 January 1993.  The DA Form 705 (APFT Scorecard) shows she failed the APFT each time she was evaluated.  The applicant was counseled after each failed attempt and advised that continued failure could result in her discharge from the Army.

4.  On 19 January 1993, the unit commander recommended that the applicant be discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, for inability to meet the Army standards for physical fitness.  He further stated she displayed an extremely poor attitude and weak performance since her arrival in the unit.

5.  On the same day, the applicant acknowledged notification of the proposed separation action and indicated she understood that, if approved, she would receive an entry level separation with uncharacterized service.  She further waived her right to consult with counsel, make statements in her behalf, and she did not request a separation physical.

6.  On 22 January 1993, the appropriate authority approved the separation action.

7.  The applicant was accordingly separated on 27 January 1993 under the provisions of Army Regulation 635-200, paragraph 11-3a, by reason of entry level status, with uncharacterized service.  She had completed 5 months and
21 days of active service.

8.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of her discharge within its 15-year statute of limitations.

9.  The applicant provides a print screen from the BIRLS Veterans Identification database which shows she received an honorable characterization of service upon her discharge.

10.  Army Regulation 635-200, chapter 3, describes the different types of characterization of service.  In part, it states in:

	a.  Paragraph 3-7a, 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.

	b.  Paragraph 3-9a, a separation will be described as an entry-level separation with service uncharacterized if processing is initiated while a member is in an entry-level status, except when the characterization of under other than honorable conditions is authorized or when the Secretary of the Army, on a case-by-case basis, determines that a honorable discharge is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.  For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break in service of more than 92 days of active military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of her DD Form 214 to show she was honorably discharged.

2.  The record shows the applicant failed her APFT on 3 separate occasions.  Further, the unit commander indicated that she displayed a poor attitude and weak performance during her assignment to the unit.  Accordingly, her immediate commander initiated separation action against her.

3.  During the first 180 days of continuous active military service, a member's service is under review.  When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant an under other than honorable conditions discharge.  An honorable characterization may be given only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and it is approved by the Secretary of the Army.

4.  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.

5.  The record is void of any evidence to show the applicant was misinformed or not aware that her entry level discharge could deprive her of many Army and 


veteran's benefits.  Lacking evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

6.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that 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)                                         AR20090021266



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ABCMR Record of Proceedings (cont)                                         AR20090021266



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