IN THE CASE OF:	  

		BOARD DATE:	  1 March 2011

		DOCKET NUMBER:  AR20100020995 


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, change of his entry level status discharge.

2.  The applicant states he was wrongfully discharged because he failed to qualify with his weapon and he was never given the opportunity to recycle through basic combat training (BCT).

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 17 November 1982 for a period of 3 years.
3.  Four DA Forms 4856 (General Counseling Forms) show the applicant:

   a.  was counseled on 11 December 1982 and 4 January 1983 regarding his failure to repair, personal hygiene, and difficulties with the manual of arms and drill and ceremony;

   b.  was counseled on 26 November and 11 December 1982; and 4, 10, and 14 January 1983 regarding his failure to repair, personal hygiene, difficulties with the manual of arms and drill and ceremony, basic rifle marksmanship; and his inability to qualify with his M-16 rifle;

   c.  refused counseling on 22 January 1983 on the Trainee Discharge Program (TDP) and his difficulties with the manual of arms, drill and ceremony, and inability to zero and qualify with his M-16 rifle; and

   d.  was counseled on 31 January 1983 on the TDP because he still could not zero his weapon using the allotted 80 rounds while under the supervision of the battalion S-3 operations noncommissioned officer.  The applicant acknowledged he was given the additional chance and he was not able to zero his weapon.  In addition, a medical examination for possible eye problems medically cleared the applicant.

4.  On 31 January 1983, the applicant's commander notified the applicant that he was initiating action to discharge him from the U.S. Army under the provisions of Army Regulation 635-200 [Personnel Separations - Enlisted Personnel], chapter 11 [Entry Level Status Performance and Conduct - TDP], and that his service would be uncharacterized.

   a.  The applicant was advised of his rights and of the separation procedures involved.  He was also advised that due to his non-completion of requisite active duty time, benefits normally associated with completion of honorable active duty service would be affected;

   b.  The commander indicated the applicant was not recycled and requested waiver for rehabilitation because the applicant did not meet the recycle criteria; and

   c.  The applicant refused counsel by a commissioned officer of the Judge Advocate General's Corps.

5.  The battalion commander recommended approval of the separation action.


6.  On 8 February 1983, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 11, with an uncharacterized characterization of service.  The commander also waived the applicant's reassignment (i.e., his recycle in BCT) for rehabilitation purposes.

7.  The applicant's DD Form 214 issued to him at the time shows he was discharged on 14 February 1983.  He had completed 2 months and 28 days of net active service.  It also shows in:

* item 23 (Type of Separation) the entry "Discharge"
* item 24 (Character of Service) the entry "Uncharacterized"
* item 25 (Separation Authority) the entry "A[rmy] R[egulation] 635-200, para[graph] 11-3a"
* item 28 (Narrative Reason for Separation) the entry "Entry Level Status Performance and Conduct"

8.  The applicant did not apply to the Army Discharge Review Board for change of his character of service within its 15-year statute of limitations.

9.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 provides in:

   a.  paragraph 11-3 (Separation policy) that this policy applies to members who voluntarily enlisted in the Regular Army, have completed no more than
180 days of active duty on current enlistment by the separation date, and have demonstrated that they are not qualified for retention for one or more of the following three reasons:

   	(1)  cannot or will not adapt socially or emotionally to military life;

   	(2)  cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or
self-discipline;

   	(3)  have demonstrated character and behavior characteristics not compatible with satisfactory continued service; and

   	(4)  have failed to respond to counseling (DA Form 2856).

   b.  paragraph 11-6 (Type of separation) shows an entry level separation - uncharacterized is used for separation per this chapter.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his entry level status discharge should be changed because he was not recycled through BCT and given the opportunity to zero and qualify with his weapon.

2.  The applicant's contention was carefully considered.  Records show:

   a.  the applicant was counseled on several occasions on basic rifle marksmanship and his inability to zero and qualify with his M-16 rifle;

   b.  that the applicant was given an additional chance and was not able to zero his weapon; and

   c.  the separation authority approved the company commander's request for waiver of the rehabilitation requirement because the applicant did not meet the recycle criteria.

3.  As a result, the applicant's contention is without merit with respect to his approved discharge under the TDP.

4.  Records show that prior to the applicant completing 180 days of active service, the separation authority directed the applicant be discharged under the provisions of Army Regulation 635-200, chapter 11.

5.  Records confirm the applicant's separation was administratively correct and in compliance with applicable regulations in effect at the time.

6.  In view of the foregoing, 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 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)                                         AR20100020995



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ABCMR Record of Proceedings (cont)                                         AR20100020995



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