IN THE CASE OF:	  

		BOARD DATE:	  26 April 2011

		DOCKET NUMBER:  AR20100024423 


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 an upgrade of his entry level status (ELS) discharge to a general discharge.

2.  The applicant states, in effect, he was recently told he could have requested an upgrade or waiver after he had been separated for 6 months.  He also states he has worked for federal agencies under federal guidelines for 23 years and that he is currently applying for a job with a civilian company.

3.  The applicant did not provide any additional documentary evidence in support of his request.

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 he enlisted in the Regular Army on 8 May 1984. He completed basic training; however, he did not complete advanced individual training.  The highest rank he attained while serving on active duty was private (PVT)/E-1.

3.  Between 30 July and 20 September 1984, the applicant received three general counseling statements for problems adjusting to military life and failure to prepare his wall locker for inspection as directed.

4.  In September 1984, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 31 July to 23 August 1984.

5.  On 24 September 1984, the applicant accepted NJP for being AWOL from 
18 September to 19 September 1984 and for disobeying a lawful order.

6.  On 24 September 1984, the applicant's unit commander notified the applicant he was initiating separation action against him under the provisions of paragraph 14-12b, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for a pattern of misconduct.  The unit commander cited the applicant’s pattern of misconduct as the basis for the action. 

7.  On 26 September 1984, the applicant consulted with legal counsel, and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge, the possible effects of the discharge, and of the procedures/rights that were available to him.  He was also advised that he may be ineligible for many or all benefits as a veteran under both federal and state laws.  On the same date, the applicant completed a statement waiving his right to a personal appearance before a board of officers and he elected not to submit a statement in his own behalf.  

8.  On 16 October 1984, the separation authority approved the applicant’s separation action.  The separation authority directed that the applicant be separated under the provisions of paragraph 14-12a, Army Regulation 635-200, due to misconduct – minor disciplinary infractions, with an ELS discharge, and uncharacterized service.  It was also directed that he be assigned a separation program designator (SPD) code of JKN.

9.  On 23 October 1984, the applicant accepted NJP for wrongfully receiving a radio, the property of nonappropriated funds, which was known to be stolen.



10.  On 14 November 1984, the applicant was issued a DD Form 214 that shows he was discharged under the provisions of paragraph 14-12a, Army Regulation 635-200, by reason of misconduct – minor disciplinary infractions "Entry Level Status."  He had completed a total of 5 months and 14 days of active service.  

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 14-12a provides that members are subject to separation for minor disciplinary infractions or a pattern of misconduct consisting solely of minor military disciplinary-infractions.  If separation of a Soldier in an ELS status is warranted solely by reason of minor disciplinary infractions the action should be processed under ELS Performance and Conduct (chapter 11).

12.  Army Regulation 635-200, 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 service at the time separation action is initiated.  

13.  Army Regulation 635-200, Chapter 11 provides for the separation of personnel due to unsatisfactory performance, conduct, or both, while in an ELS status.  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.

14.  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.

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

DISCUSSION AND CONCLUSIONS:

1.  The available evidence confirms that separation action was initiated against the applicant while he was in an ELS status which was prior to him completing 180 days of continuous active military service.  A Soldier is in an ELS or a probationary period for the first 180 days of continuous active service.  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.  Given that no such circumstances exist the evidence is insufficient to grant the applicant's request.

2.  However, the governing regulation indicates the applicant should have been separated under the provisions of paragraph 11-3a, Army Regulation 635-200 with uncharacterized service.  

3.  Therefore, his DD Form 214, item 24, should contain the entry "Uncharacterized," item 25 should contain the entry "AR 635-200 Para 11-3a, item 28 should contain the entry "Entry Level Status Performance and Conduct," and item 26 should contain the entry "JGA." 

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 request.

5.  The available evidence shows the applicant’s records contain administrative errors which do not require action by the Board.  Therefore, an administrative correction of the applicant’s records will be accomplished by the Army Review Boards Agency (ARBA) Case Management Division (CMD), Arlington, VA, as outlined in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ____X___  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.
2.  The Board requests that the CMD-Arlington, VA provide administrative relief by providing the individual concerned a DD Form 215 (Correction to the 
DD Form 214) to show in:  item 24 "Uncharacterized; item 25 "AR 635-200, Paragraph 11-3A; item 26 "JGA"; and item 28 "Entry Level Status Performance and Conduct." 




      __________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)                                         AR20100024423



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100024423



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1