IN THE CASE OF:	  

		BOARD DATE:	  24 February 2011

		DOCKET NUMBER:  AR20100021222 


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 his service from "Entry Level Status" to "Honorable."

2.  The applicant states that he was neither court-martialed nor was his service dishonorable.  He adds that he is a prisoner of war and in need of easy good work, housing, and a bed.  He is only 45 years old but he is disabled and he has a broken back and a chipped bone in his right wrist.  Additionally, both of his wrists hurt because of handcuffs.  He suffers from different ailments as well as being harassed by various individuals who try to hurt him.

3.  The applicant did not provide any additional evidence.

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 records show he enlisted in the Regular Army on 20 June 1984 for a period of 3 years and proceeded to his one station unit training (OSUT) at Fort McClellan, AL.  He was assigned to Company E, 10th Military Police Battalion.

3.  His records contain an extensive history of counseling by members of his chain of command for various issues including being disrespectful to peers, lacking motivation, lacking self-discipline, failing to follow instructions, failing to report, breaking ranks during an inspection, displaying a negative attitude, recurring lateness to formation, failing to show positive rehabilitation results, receiving several failures on weapons qualification, and being disruptive within the company.

4.  On 15 August 1984, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for dereliction of his duties.  

5.  On 6 September 1984, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11 (Trainee Discharge Program).  Specifically, the immediate commander stated that the applicant lacked the ability to adjust to the military environment. 

6.  On 6 September 1984, the applicant acknowledged receipt of the notification of separation action.  He was advised of the basis for his contemplated separation and its effects, the rights available to him, and the effects of a waiver of his rights.  He also acknowledged that he understood that if his discharge was approved, he would receive an entry level separation with an uncharacterized service.  He further acknowledged that Veterans Administration (VA) and other benefits normally associated with completion of active service would be affected. He elected not to consult with counsel, not to make a statement or submit a rebuttal in his own behalf, and waived a separation medical examination.

7.  On 6 September 1984, by endorsement, the applicant’s immediate commander recommended the applicant's separation from the Army under the provisions of Army Regulation 635-200, chapter 11, due to the applicant's 

inability to adjust to the military environment.  The immediate commander remarked that further counseling and/or rehabilitative efforts would not result in the quality of Soldier desired by the Army. 

8.  On 20 September 1984, the applicant's intermediate commander recommended approval of the applicant's discharge.

9.  On 21 September 1984, the separation authority reviewed the proposed separation action and approved an entry-level separation (uncharacterized) in accordance with Army Regulation 635-200, chapter 11.  On 27 September 1984, the applicant was discharged accordingly.

10.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 11-3a and his characterization of service was Entry Level Status.  This form further confirms he completed a total of 3 months and 8 days of creditable active service.  

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of this regulation sets policy and provides guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in entry-level status.  It states in pertinent part that when separation of a member in entry-level status is warranted by unsatisfactory performance or minor disciplinary infractions (or both) as evidenced by inability, lack of reasonable effort, or failure to adapt to the military environment, the member normally will be separated per this chapter.  This separation policy applies to enlisted members of the Regular Army, who have completed no more than 180 days active duty on current enlistment by the date of separation, have demonstrated that they are not qualified for retention for one or more of the following reasons:  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; have demonstrated character and behavior characteristics not compatible with satisfactory continued service; or failed to respond to counseling.

12.  Chapter 3 of Army Regulation 635-200 describes the different types of characterization of service.  It states in pertinent part that an uncharacterized separation is an entry-level separation.  A separation will be described as an entry-level separation if processing is initiated while a member is in entry-level status, except when characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the 

circumstances of the case or when the Secretary of the Army, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.

13. 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that while in OSUT, the applicant demonstrated character and behavior characteristics and a lack of motivation and/or desire to become an effective Soldier, which is incompatible with satisfactory continued service.  Accordingly, his immediate commander initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his military service at that time.

2.  During the first 180 days of continuous active military service, a member's service is under review.  When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant an under other than honorable conditions discharge.  An honorable characterization may be given only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and is approved by the Secretary of the Army.  

3.  The entry-level separation is given regardless of the reason for separation. This uncharacterized discharge is neither positive nor negative; it is not "derogatory."  It simply means the Soldier did not serve long enough to qualify for a specified characterization of service.

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  Furthermore, while his current situation is regrettable, there is no evidence in the available records and he did not provide any evidence to warrant an upgrade of his discharge.

5.  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)                                         AR20100021222



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ABCMR Record of Proceedings (cont)                                         AR20100021222



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