IN THE CASE OF:	  

		BOARD DATE:	  2 December 2010

		DOCKET NUMBER:  AR20100014956


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 his uncharacterized discharge to a general discharge.

2.  The applicant states he was advised that after six months his discharge would be upgraded as long as he did not commit any infractions of the law.  The applicant states he has remained true and he has not had any infractions of the law or any other incidents that would disgrace or embarrass the Department of the Army.  The applicant closes by stating that it's been twenty years since his discharge, so he is now asking for a review and upgrade of his discharge.

3.  The applicant provided no additional documentary evidence.

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 25 July 1989.  He was ordered to Fort Benning, GA for one station unit training (OSUT).  Records show the applicant completed OSUT and he was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he attained while serving on active duty was private (PV1)/E1.

3.  On 12 January 1990, the applicant's commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, due to entry-level performance and conduct.  The commander cited as the specific reasons for his proposed action the applicant's display of suicidal tendencies, his failure of the Army Physical Fitness Test (APFT), and his unsuccessful participation in the unit physical training program.

4.  On 17 January 1990, the applicant was advised by consulting counsel of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, chapter 11, and its effect, of the rights available to him, and the effect of any action taken by him in waiving his rights.  He further elected not to submit any statements in his own behalf.

5.  On 19 January 1990, the separation authority waived the rehabilitation requirement because rehabilitation would not be in the best interests of the Army as it would not produce a quality Soldier.  He approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 11, with an entry-level separation with an uncharacterized characterization of service.

6.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 25 January 1990 under the provisions of Army Regulation 635-200, chapter 11, by reason of entry-level status.  Item 26 (Separation Code) shows the entry "JGA" and item 28 (Narrative Reason for Separations) shows the entry "Entry-level status."  At the time of discharge the applicant had completed 6 months and 1 day of total active service.

7.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of the regulation in effect at the time set policy and provided guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in an entry-level status.  It stated that when separation of a member in an entry-level status is warranted by unsatisfactory performance or minor disciplinary infractions (or both) as evidenced by inability, lack of reasonable effort, or failure to adapt to the military environment, the member normally will be separated per this chapter.  This separation policy applied to enlisted members of the Regular Army who have demonstrated that they cannot or will not adapt socially or emotionally to military life because of lack of aptitude, ability, motivation or self-discipline; have demonstrated character and behavior characteristics not compatible with satisfactory continued service; or failed to respond to counseling.

9.  Army Regulation 635-200 further describes the different types of characterization of service.  It provides that an uncharacterized separation is an entry-level separation.  A separation will be described as an entry-level separation if processing is initiated while a member is in an entry-level status except when the characterization of under other than honorable condition 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 RA 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.

10.  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:

1.  The evidence of record indicates his performance and conduct proved that he could not adapt socially and emotionally to military life and his demonstrated behavior was not compatible with satisfactory military service.  Accordingly, his immediate commander initiated separation action against him.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his military service at that time.

2.  By regulation, a separation will be described as an entry-level separation if processing is initiated while a member is in an entry-level status except when the characterization of under other than honorable condition 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.

3.  The entry-level separation is given regardless of the reason for separation. This uncharacterized discharge is neither positive nor negative; it is not derogatory.  It simply means the Soldier did not serve long enough to qualify for a specified characterization of service.

4.  The evidence of record confirms his narrative reason for separation was assigned based on the fact that he was discharged under the provisions of Army Regulation 635-200, chapter 11, entry-level status performance and conduct.  The underlying reason for his discharge was his suicidal tendencies, his APFT failure, and his unsuccessful participation in the unit physical training program.  The only valid narrative reason for separation permitted under this paragraph is "entry-level status."  

5.  The Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.  A discharge may be upgraded by the ADRB within its 15-year statute of limitations or this Board if either determines the discharge was improper or inequitable.  A review of this case reveals no evidence that suggests there was any error or injustice related to the applicant's separation processing.  Therefore, it is concluded his discharge was proper and equitable and it accurately reflects the applicant's overall record of service.  As a result, there is an insufficient evidentiary basis to support granting the requested relief in this case.

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)                                         AR20100014956



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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