IN THE CASE OF:	  

		BOARD DATE:	  7 October 2010

		DOCKET NUMBER:  AR20100010024 


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 the character of service be changed to general under honorable conditions or honorable on his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states, in effect, that he was injured in basic training and was issued an uncharacterized discharge.  The applicant states employers treat his discharge as if it is less than honorable.  He adds that he is not able to get a license from the Nevada Gaming Commission. 

3.  The applicant provides no additional documentation in support of this case.

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 19 June 1990 and did not successfully complete basic training.  

3.  The applicant's military service record reveals his acceptance of general counseling statement on 29 July 1990 for failure to pass the Army Physical Fitness Test (Diagnostic).

4.  On 19 September 1990, the applicant’s commander signed an elimination packet on the applicant for separation under the provisions of Army Regulation 635-200, chapter 11, entry-level status performance and conduct.  The reason cited by the commander was the applicant’s personal problems that precluded him from adjusting to military life and that it was in the best interest of the military that he be discharged at that time.  The document shows that if approved by the separation authority the applicant would receive an entry level separation with uncharacterized service.  On 19 September 1990, the applicant acknowledged notification of this action.  He indicated that he did not desire to consult with counsel and that he did not desire to make a statement in his behalf.

5.  The applicant's military service record reveals a counseling history that includes his acceptance of general counseling statements on the following date:

* 24 September 1990 for not qualifying for hand grenade training
* 24 September 1990 for not completing rifle bayonet fighting techniques
* 24 September 1990 for not completing ARM reinforcement training
* 24 September 1990 for not attending hand to hand classes
* 24 September 1990 for not completing SST classes
* 24 September 1990 for not being able to train for 45 days

6.  On 25 September 1990, the appropriate authority approved the elimination packet and waiver of the rehabilitative transfer requirement and directed the applicant receive an "Uncharacterized Discharge" under the provisions of Army Regulation 635-200, chapter 11, for entry level performance and conduct.  He had completed 3 months and 13 days of creditable active service.  

7.  Item 24 (Character of Service) of the applicant's DD Form 214 shows the entry "UNCHARACTERIZED"; item 26 (Separation Code) shows a separation 

code of “JGA”; and item 28 (Narrative Reason for Separation) shows the entry "ENTRY LEVEL STATUS."

8.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  Chapter 11 sets the policy and prescribes procedures for separating members who were voluntarily enlisted in the Regular Army, National Guard or Army Reserve, are in an entry-level status and, before the date of the initiation of separation action, have completed no more than 180 days of creditable continuous service, and have demonstrated that they are not qualified for retention.  The following conditions are illustrations of conduct that does not qualify for retention:  cannot or will not adapt socially or emotionally to military life; cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline; or have demonstrated character and behavior characteristics not compatible with satisfactory continued service.  Unless the reason for separation requires a specific characterization, a Soldier will be awarded an uncharacterized description of service if in an entry-level status.  (For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty.)

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded to a general under honorable conditions or honorable discharge for him to gain employment.  However, the ABCMR does not grant relief solely for gaining employment.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  A chapter 11 discharge is used for entry-level Soldiers not qualified for retention for one of several reasons, including if they cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline.  There was evidence, in the applicant's counseling's, to show he could not meet the minimum standards for successful completion of basic training.  The general counseling statements showed that the regulatory counseling requirement was met.  

3.  The uncharacterized discharge directed and the reasons therefore were appropriate considering all the facts of this case.  However, an uncharacterized discharge 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.


4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100010024





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ABCMR Record of Proceedings (cont)                                         AR20100010024



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