BOARD DATE:	  9 December 2010

		DOCKET NUMBER:  AR20100017516 


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 correction of the character of service shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty) to honorable.

2.  The applicant states he served 183 days on active duty and completed the military occupational specialty training.  He should not have received an entry-level status (ELS) discharge because he was on active duty for more than 180 days.

3.  The applicant provides no additional documentary evidence in support of his application

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 that he enlisted in the U.S. Army Reserve on 24 July 1993.  He was ordered to initial active duty for training on 1 October 1993.

3.  The applicant's record further shows he was formally counseled by members of his chain of command on five different occasions for failing the physical fitness test on four separate occasions, poor attitude, lack of motivation, and missing bed check.

4.  On 24 March 1994, the applicant's unit commander informed the applicant of his intent to process him for separation under the provisions of chapter 11, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), by reason of ELS performance and conduct.  The unit commander cited the applicant's inability to adapt socially or emotionally to the military environment and his lack of self-discipline which is required to become a productive Soldier.  The applicant acknowledged receipt of the separation notification.  The applicant was afforded the opportunity to consult with appointed counsel and he declined the opportunity.  He acknowledged that he understood the basis for the contemplated separation action and his understanding that, if approved, he would receive an ELS separation with uncharacterized service.  The applicant did not submit a statement in his own behalf.

5.  On 24 March 1994, the separation authority reviewed and approved the applicant's separation.  The separation authority directed that the applicant be separated under the provisions of chapter 11, Army Regulation 635-200, and that his service be uncharacterized based on his ELS.  On 31 March 1994, the applicant was discharged accordingly.  At the time of his separation he had completed 6 months of creditable active military service.

6.  There is no evidence indicating the applicant applied to the Army Discharge Review Board for a change to his discharge within that board's 15-year statute of limitations.

7.  Chapter 11, Army Regulation 635-200, provides for the separation of personnel due to unsatisfactory performance, conduct, or both, while in an ELS.  An uncharacterized service description is normally granted to Soldiers separating under this chapter.  A general under honorable conditions discharge is not authorized under ELS conditions and an honorable discharge is rarely ever granted.  An honorable discharge may be given only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.

8.  Army Regulation 635-200, 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, states 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.

10.  Army Regulation 635-200, paragraph 3-9, contains guidance on ELS separations.  It states, in pertinent part, that a separation will be described as entry level with service uncharacterized if the Soldier has less than 180 days of continuous active duty service at the time separation action is initiated.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded because he served on active duty for more than 180 days was carefully considered and found to be without merit.

2.  The evidence of record confirms that separation action was initiated against the applicant while he was in an ELS prior to completing 180 days of continuous active military service.  The record further shows the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The record also shows the applicant's service was described as uncharacterized as a result of his being separated while in an ELS.  A Soldier is in an ELS, or a probationary period, for the first 180 days of continuous active duty.  The issuance of a general discharge to members in an ELS is not authorized and an honorable discharge may be granted only in cases that are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.  Given no such unusual circumstances are present in the applicant's record, there is an insufficient evidentiary basis to support any change to the characterization of his service.

4.  An uncharacterized discharge is not meant to be a negative reflection of a Soldier's military service.  It merely means the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise.  As a result, there is no basis for granting the applicant's requested relief.

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 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)                                         AR20100017516



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ABCMR Record of Proceedings (cont)                                         AR20100017516



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