IN THE CASE OF:
BOARD DATE: 21 December 2010
DOCKET NUMBER: AR20100012559
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 discharge from general to honorable.
2. The applicant states, in effect, he enlisted for primary military occupational specialty 93C (Air Traffic Control Operator). He was later told he could not have this school. He objected and he was discharged for "apathy."
3. The applicant provides a copy of:
* his voided DA Form 3286-59 (Statement for Enlistment, United States Army Enlistment Program, U.S. Army Delayed Enlistment Program (DEP))
* U.S. Army Recruitment Command (USAREC) Form 986 (Separation Request Form)
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 applicants 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 applicants 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 contains a DD Form 4 (Enlistment/Reenlistment Document, Armed Forces of the U.S.) which shows he initially enlisted in the U.S. Army Reserve (USAR) DEP on 24 February 1992.
3. The applicant submitted a copy of DA Form 3286-59 which shows:
* He enlisted for the U.S. Army Training Enlistment Program and training in military occupational specialty (MOS) 93C1O (Air Traffic Control Operator)
* "VOID" is written on the DA Form 3286-59, dated 9 July 1992
* The date of enlistment in the Regular Army (RA) was scheduled for
10 July 1992
4. The applicant submitted a copy of USAREC Form 986, dated 6 July 1992, which shows:
* He was voluntarily separated from the DEP
* The reason for separation or voided enlistment is annotated to show "Apathy or Personal Problems"
* The applicant and the Recruitment Station Commander signed this form on 6 July 1992
5. Orders Number 37-4, U.S. Army Recruiting Battalion Albany, dated 15 July 1992, shows the applicant was separated from the USAR DEP, Fort Sheridan, IL effective 9 July 1992.
6. Army Regulation 135-178 (Enlisted Administrative Separations) states in pertinent part that a Soldier who enlisted in the USAR under the DEP and declines enlistment in the RA and is not being ordered to active duty, the service will be described as an entry level separation.
7. Army Regulation 135-178 further states in pertinent part that if a Soldier's enlistment is voided that Soldier will not receive a discharge, characterization of service at separation, or an uncharacterized description of service. Instead, the separation will be described as an order of release from custody and control of the Army.
8. Army Regulation 635-200 (Personnel Separations), 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.
9. Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
There is no evidence in the applicant's official record nor did he submit any evidence that shows he reported for or served on continuous active duty in the RA. The available evidence clearly shows he was voluntarily separated while in the USAR DEP for apathy/personal problems. Therefore, he was never issued a characterization of service and his records are correct as currently constituted.
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) AR20100012559
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
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