IN THE CASE OF:	 

		BOARD DATE:	  24 February 2011

		DOCKET NUMBER:  AR20100021655 


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 entry level discharge, from an uncharacterized to an honorable characterization of service.  

2.  The applicant states, in effect, he was young and immature at the time of his entry into the Army, and his wife was threatening to leave him.  He states he had a lot of family problems, as well, with no counseling to help him deal with them.  He further states he did not know what he was getting into, and he was under a lot of pressure from both parents telling him what to do.

3.  The applicant provided no 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 record shows that he enlisted in the Regular Army on 6 October 1982.  He attended basic combat training at Fort Dix, NJ, but was discharged prior to completion.  His record shows he never advanced above his entry grade of private/E-1 while serving on active duty. 

3.  His record shows he was formally counseled by members of his chain of command on five separate occasions between 10 October 1982 and 16 November 1982, for a myriad of performance and conduct related matters that included, but was not limited to: substandard performance; poor physical health and conditioning; lack of motivation; apathy; poor attitude; and an overall unwillingness to adapt to the military lifestyle.    

4.  On 19 November 1982, his unit commander informed the applicant of his intent to process him for separation under the provisions of Army Regulation  635-200 (Enlisted Separations), chapter 11, by reason of entry level status (ELS) performance and conduct.  The unit commander cited the applicant's demonstrated inability to meet the minimum standards of aptitude, ability, motivation, and self-discipline, required of a Soldier in the U.S. Army, as the basis for taking the action. The applicant acknowledged receipt of the separation notification.  

5.  On 20 December 1982, the separation authority approved his separation for performance and conduct while in an ELS.  The separation authority directed he be separated under the provisions of Army Regulation 635-200, chapter 11.  

6.  On 23 December 1982, he was discharged accordingly.  At the time of his separation, he had completed 2 months and 18 days of active military service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows:

* Item 23 (Type of Separation) – Discharge (Entry Level)
* Item 24 (Character of Service) – Uncharacterized
* Item 25 (Separation Authority) – Para 11–3A/B  AR 635-200
* Item 28 (Narrative Reason for Separation) – Entry Level Status Performance and Conduct

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

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 contains guidance on ELS separations.  It states that a separation will be described as entry level with uncharacterized service if the Soldier has less than 180 days of continuous active duty service at the time separation action is initiated.  Chapter 11 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 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.

9.  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.

10.  Army Regulation 635-200, paragraph 3-7b, provides 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's request for upgrade of his discharge was carefully considered; however, there is insufficient evidence to support this request.

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

3.  The record also shows his character of service was described as uncharacterized as a result of his separation while in an ELS status.  A Soldier is in an ELS status, or probationary period, for the first 180 days of continuous active duty.  The issuance of a general discharge to members in an ELS status 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.  No such unusual circumstances are present in his record; therefore there is insufficient basis to support any change to the characterization of his service.

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)                                         AR20100014926



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ABCMR Record of Proceedings (cont)                                         AR20100021655



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