BOARD DATE:	  16 February 2011

		DOCKET NUMBER:  AR20100016446 


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 and a copy of his DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States).

2.  He states he was under the influence of drugs and alcohol while in the Army.  While he was in basic training at Fort Leonard Wood, MO, his wife came out to be with him.  She also used drugs and alcohol that caused him to be constantly under stress.  He requested help from his drill instructor, but received none.  He states that he is currently incarcerated and enrolled in a Drug and Alcohol Treatment Program with the Nevada State Department of Corrections.

3.  He states that he has been a drug addict since he was 17 years old.  He has nowhere to go upon his release from confinement and would greatly appreciate all the help he can get.  He is not a bad person and he is finally turning his life around.  He would like his discharge upgraded to get medical and housing benefits from the Department of Veterans Affairs (DVA).

4.  He provides a DD Form 293, dated 19 May 2010.

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 16 May 1989 and he successfully completed basic training.  He did not complete advanced individual training (AIT).

3.  On 2 July 1989, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for leaving his post and being absent from his place of duty.

4.  His records reveal a disciplinary history that includes his receipt of general counseling statements on the following dates:

* 2 July 1989 for failing to go at the time prescribed to his appointed place of duty
* 7 July 1989 for failing to follow instructions
* 10 July 1989 for failing to obey a lawful order
* 11 July 1989 for being disrespectful towards a noncommissioned officer (NCO), lack of motivation, and disruptive behavior
* 12 July 1989 for breaking restriction
* 13 July 1989 for lack of motivation
* 17 July 1989 for communicating a threat, disruptive behavior, and destruction of government property

5.  On 18 July 1989, his commander initiated separation on the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, for entry-level status performance and conduct.  The reason cited by the commander was his disruptive behavior, unwillingness to become part of the Army system, and being a negative influence on other Soldiers.  The document shows that, if approved by the separation authority, the applicant would receive an entry-level separation with uncharacterized service.  On 18 July 1989, he acknowledged notification of this action.  He indicated that he did not desire to consult with legal counsel and that he did not desire to make a statement in his own behalf.

6.  On 19 July 1989, the appropriate separation authority approved the separation action, waived the rehabilitation 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 2 month and 6 days of creditable active service.  

7.  Item 24 (Character of Service) of his DD Form 214 shows the entry "Uncharacterized"; item 26 (Separation Code) shows the entry “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.  

9.  Army Regulation 635-200, paragraph 1-16 states that when a Soldier’s conduct or performance approaches the point where a continuation of such conduct or performance would warrant initiation of separation action, he or she will be counseled about his or her deficiencies.  Before initiating separation action, commanders will ensure that the Soldier receives adequate counseling and rehabilitation in accordance with chapter 1, section II.  A responsible person will counsel the Soldier about his or her deficiencies at least once before initiating separation action.  Additional formal counseling is discretionary.  The counseling will be conducted per Army Regulation 350-21 (Instructions in Benefits of an Honorable Discharge).  It will be comprehensive and will include at least the reason for counseling, that separation action may be initiated if the behavior continues, and the type of discharge that could result from the possible separation action and the effect of each type.  Replacement stream Soldiers will be recycled (rehabilitated) at least once.  The requirement for a rehabilitative transfer may be waived by the separation authority.  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.)

10.  Army Regulation 635-200 provides guidance on characterization of service.  Paragraph 3-7b states 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 applicant contends that his discharge should be upgraded in order for him to obtain medical and housing benefits with the DVA.  However, the ABCMR does not grant relief solely for the purpose of obtaining DVA benefits.

2.  His 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 his counseling's, to show he could not meet the minimum standards for successful completion of AIT.  The general counseling statements showed that the regulatory counseling requirement was met.  

3.  It is acknowledged that some DVA benefits and other benefits are dependent upon the type of discharge awarded and/or the length of service (total service and/or active duty service).  However, the uncharacterized discharge directed and the reasons therefore were appropriate considering all the facts of this case. 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 his request.

5.  The applicant's DD Form 293 will be returned to him with these Proceedings.

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)                                         AR20100016446



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ABCMR Record of Proceedings (cont)                                         AR20100016446



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