IN THE CASE OF:	  

		BOARD DATE:	      6 January 2011

		DOCKET NUMBER:  AR20100016183 


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, items 24 (Character of Service), 
25 (Separation Authority), 26 (Separation Code), 27 (Reentry (RE) Code), and 
28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 17 February 2009 be changed.  He also requests payment for 13.5 days of accrued leave.

2.  The applicant states:

* He is a very proud American and Gulf War veteran
* He is an educated police officer with a combined 14 years of serving his country as a Soldier and police officer
* He reentered military service for all the right reasons and wanted to lead troops
* He believed his background would have been a great asset 
* He earned and deserved a better experience at Fort Benning, GA, especially since he did all of his training there in 1990 with his prior military occupational specialty 11B1P (infantryman)
* There were numerous violations of TRADOC [Training and Doctrine Command] Regulation 350-6 (Enlisted Initial Entry Training (IERT) Policies and Administration)


3.  The applicant provides:

* a letter from a Member of Congress, dated 21 May 2009
* a letter he wrote to the Member of Congress, dated 29 March 2009
* his DD Forms 214 for the periods ending 17 February 2009 and 2 July 1992
* excerpts from TRADOC Regulation 350-6

CONSIDERATION OF EVIDENCE:

1.  Having prior active service in the Regular Army (RA) (6 March 1990 to 2 July 1992) and inactive service in the U.S. Army Reserve, the applicant enlisted in the RA on 10 September 2008 for a period of 3 years.

2.  On 26 January 2009, medical authorities at Fort Benning determined the applicant's medical condition (herniated discs in his lower back) did not warrant disposition through medical channels but recommended his discharge through administrative channels.  A DA Form 4856 (Developmental Counseling Form), dated 2 February 2009, indicates the applicant's pre-existing injury prevented him from completing much of the training that is required for him to become an infantryman.

3.  On 2 February 2009, the applicant’s unit commander initiated action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 11, for entry level performance and conduct.  The commander stated:

* The applicant was unable to participate in training throughout most of the training cycle due to his medical condition
* Medical personnel determined his medical condition did not warrant disposition through medical channels but recommended he be disposed of through administrative channels
* The applicant was physically incapable of completing basic training

4.  On 2 February 2009, the applicant waived the right to seek legal counsel and he requested to be separated from the Army as soon as possible.

5.  On 6 February 2009, the separation authority approved the recommendation for separation and directed the applicant's character of service be uncharacterized. 


6.  On 17 February 2009, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 11, by reason of entry level performance and conduct.  He completed 5 months and 8 days of net active service this period.

7.  Item 16 (Days Accrued Leave Paid) of the applicant's DD Form 214 for the period ending 17 February 2009 shows the entry "0."  Item 24 shows the entry "UNCHARACTERIZED."  Item 25 shows the entry "AR [Army Regulation] 635-200, CHAP [chapter] 11."  Item 26 shows the entry "JGA."  Item 27 shows the entry "3."  Item 28 shows the entry "ENTRY LEVEL PERFORMANCE AND CONDUCT."  

8.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Compensation and Entitlement Division, Office of the Deputy Chief of Staff, G-1, Washington, D.C.  The advisory official points out that:

* Based on the regulatory guidance, the applicant is not eligible for the payment for 14 days accrued annual leave on separation from the Army
* Paragraph 1-10 of Army Regulation 635-200 states granting of leave in conjunction with separation will be in accordance with Army Regulation 600-8-10 (Leave and Passes)
* Paragraph 2-4 of Army Regulation 600-8-10 states accrued leave is forfeited when a Soldier is discharged before completing 6 months of active duty when the discharge is based on unsatisfactory performance or misconduct, which appears to be the characterization of the applicant's chapter 11 discharge
* The payment for 14 days of unused accrued leave at separation is prevented by statute

9.  On 11 June 2010, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comment or a rebuttal.  The applicant did not respond.  

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of this regulation provides 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 inability, lack of reasonable effort, or failure to adapt to the military environment.  Counseling and rehabilitation requirements are essential when chapter 11 is the reason for separation.  The regulation states that a Soldier is in an entry level status if the Soldier has not completed more than 180 days of creditable continuous active duty prior to the initiation of separation action.  The Soldier’s service is uncharacterized when separated under this chapter.


11.  Army Regulation 635-200, paragraph 5-11, specifically provides that Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment or who became medically disqualified under these standards prior to entrance on active duty or active duty training or initial entry training will be separated.  A medical proceeding, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within 6 months of the Soldier's initial entrance on active duty, that the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at that time, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  The characterization of service for Soldiers separated under this provision of regulation will normally be honorable, but will be uncharacterized if the Soldier is in an entry-level status.  For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty.

12.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation states the reason for discharge based on the separation code of JGA is entry level performance and conduct and the regulatory authority is Army Regulation 635-200, chapter 11.  

13.  Army Regulation 635-5-1 states the reason for discharge based on separation code JFW is failure to meet procurement medical fitness standards and the regulatory authority is Army Regulation 635-200, paragraph 5-11.

14.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior-service applicants for enlistment.  That chapter includes a list of armed forces RE codes.

* RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated
* RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.

15.  The SPD/RE Code Cross Reference Table, dated 15 June 2006, shows that Soldiers assigned an SPD code of "JGA" will be assigned an RE code of 3.  
16.  The SPD/RE Code Cross Reference Table shows Soldiers assigned an SPD code of "JFW" will be assigned an RE code of 3. 

17.  Army Regulation 600-8-10, paragraph 2-4, states accrued leave is forfeited when a Soldier is discharged before completing 6 months of active duty when the discharge is based on unsatisfactory performance or misconduct for entry level performance and conduct.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant's pre-existing injury prevented him from completing much of the training that was required for him to become an infantryman.  Medical authorities determined his medical condition did not warrant disposition through medical channels but recommended his discharge through administrative channels.  He was discharged under the provisions of Army Regulation 635-200, chapter 11, by reason of entry level performance and conduct.  However, there is no evidence of record which shows the applicant met the criteria for this chapter.  

2.  Chapter 11 of Army Regulation 635-200 provides 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 inability, lack of reasonable effort, or failure to adapt to the military environment.   Counseling and rehabilitative transfers are required.  In the applicant's case, no amount of counseling or rehabilitative transfers would have improved his medical condition.

3.  It appears the applicant should have been discharged under the provisions of Army Regulation 635-200, chapter 5-11, due to failure to meet procurement medical fitness standards since the governing regulation specifically provides that Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment will be separated.  Therefore, it would be equitable to correct items 25, 26, and 28 of his DD Form 214 for the period ending 17 February 2009 to show he was discharged under the provisions of Army Regulation 635-200, chapter 5-11, for failure to meet procurement medical fitness standards. 
  
 4.  Since the applicant was in an entry level status when he was discharged on 17 February 2009, his character of service (uncharacterized) is properly reflected in item 24 on his DD Form 214 for the period ending 17 February 2009.  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.  Therefore, there is no basis for granting the applicant's request to amend item 24 of his DD Form 214 for the period ending 17 February 2009.

5.  The governing regulation states separation code JFW is failure to meet procurement medical fitness standards and the regulatory authority is Army Regulation 635-200, paragraph 5-11.  The SPD/RE Code Cross Reference Table shows Soldiers assigned an SPD code of "JFW" will be assigned an RE code of 3 which is properly shown in item 27 of the applicant's DD Form 214 for the period ending 17 February 2009.  Therefore, there is insufficient evidence in which to amend item 27 of this DD Form 214.  

6.  The applicant's request for payment of 13.5 days of accrued leave was noted.  It appears his accrued leave was forfeited in accordance with the governing regulation because he was discharged under the provisions of Army Regulation 635-200, chapter 11.  However, since his administrative discharge under chapter 11 was incorrect, and based on the correction of his administrative discharge, the Defense Finance and Accounting Service (DFAS) should audit his account and make the necessary pay adjustments pertaining to his accrued leave if appropriate.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X___  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting the entry in item 25 of his DD Form 214 for the period ending 
17 February 2009 and replacing it with "AR 635-200, CHAP 5-11";

	b.  deleting the entry in item 26 of this DD Form 214 and replacing it with "JFW"; 

	c.  deleting the entry in item 28 of this DD Form 214 and replacing it with "FAILURE TO MEET PROCUREMENT MEDICAL FITNESS STANDARDS"; and 
     
	d.  Having DFAS audit his account and make appropriate adjustments pertaining to his accrued leave if appropriate.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to amending items 24 and 27 of his DD Form 214 for the period ending 17 February 2009  




      _________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)                                         AR20100016183



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ABCMR Record of Proceedings (cont)                                         AR20100016183



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