IN THE CASE OF:	  

		BOARD DATE:	  3 March 2011

		DOCKET NUMBER:  AR20100019641 


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 an honorable discharge and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the upgraded discharge and award of the National Defense Service Medal.

2.  The applicant states he was injured while in training on active duty.  He contends that he was suffering at the time from mental and physical illness that impeded his ability to address the issue.  He further states that his request should be granted in the interest of justice.

3.  The applicant provides a copy of his DD Form 214.

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.  On 22 October 1992, the applicant enlisted in the Regular Army.  He was subsequently assigned to Fort Benning, GA for his initial training.

3.  The applicant received the following counseling:

	a.  2 December 1992 for an ankle injury resulting in missing 8 days of training;

	b.  2 December 1992 for failing the Army Physical Fitness Test (APFT) on
28 November 1992;

	c.  20 December 1992 for failing the APFT on 17 December 1992; and

	d.  22 January 1993 for failing the APFT on 9 January 1993.

4.  The applicant accepted the following nonjudicial punishments under the provisions of Article 15, Uniform Code of Military Justice (UCMJ):

	a.  2 December 1992 for willfully disobeying a lawful order; and

	b. 18 February 1993 for attempted breaking into another Soldier's wall locker.

5.  On 19 February 1993, the applicant was notified by his commander of his intention to take action to separate him from the service due to his attitude, discipline, and lack of maturity.  The applicant was informed of his rights.  The applicant elected not to make a statement in his own behalf.  He also did not desire to have a separation medical examination or to consult with either military or civilian counsel.

6.  The applicant’s commander recommended the applicant be separated from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, due to his failure to demonstrate the discipline and maturity necessary to become a successful Soldier.  The command further stated that the applicant did not have the potential for service in the future, to include the Individual Ready Reserve (IRR).

7.  On 9 March 1993, the appropriate authority approved the recommendation and directed the applicant's discharge in an Entry Level Status with issuance of an uncharacterized character of service.  He was accordingly discharged on 
15 March 1993.  He completed 4 months and 24 days of creditable active service.


8.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows the Sharpshooter Marksmanship Qualification Badge with Rifle Bar and the Marksman Marksmanship Qualification Badge with Grenade Bar.

9.  The applicant's service medical records were not available for review.

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

11.  Army Regulation 635-200, chapter 11, establishes policy and prescribes procedures for separating members because of unsatisfactory performance or conduct (or both) while in an entry level status.  It states that separation under this chapter applies to Soldiers who are in an entry level status and, before the date of the initiation of separation action, have completed no more than 180 days of continuous active duty and have demonstrated that they cannot or will not adapt socially or emotionally to military life.  Entry level status is defined as the first 180 days of continuous active duty.  It further states that the character of service for members separated under the provisions of this chapter will be uncharacterized.

12.  Army Regulation 600-8-22 (Military Awards) states the National Defense Service Medal is awarded for honorable active service for any period between  27 July 1950 and 27 July 1954, 1 January 1961 and 14 August 1974, 2 August 1990 and 30 November 1995, and 11 September 2001 and a date to be determined.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The applicant's contention that he suffered from mental and physical illness at the time of his discharge is not supported by any documentary evidence.  Furthermore, he has not provided any documentary evidence showing that what the Army did with regard to the characterization of his service was in error or unjust.  Accordingly, his request to change the characterization of his service should be denied.
4.  The available evidence clearly shows that he served on active duty during a qualifying period for award of the National Defense Service Medal.  Therefore, his DD Form 214 should be corrected to show this award.

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 adding in Item 13 of his DD Form 214 the National Defense Service Medal.

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 changing the characterization of his service from uncharacterized to honorable.



      __________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)                                         AR20100019641



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ABCMR Record of Proceedings (cont)                                         AR20100019641



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