IN THE CASE OF:
BOARD DATE: 9 June 2011
DOCKET NUMBER: AR20100028562
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 his entry level status separation be changed to an honorable discharge.
2. He states he needs an honorable discharge to get his job back and to prove his Selective Service obligation was met.
3. He provides no additional documents.
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 applicants 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 applicants 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 U.S. Army Reserve (USAR) on 18 December 1985 for a period of 8 years.
3. His record is void of any indication that he attended initial active duty training or was awarded a military occupational specialty (MOS).
4. On 12 August 1987, his company commander notified him of the pending USAR discharge for failure to attend training per his enlistment contract. He was advised that he had the right to present any rebuttal or statements in his behalf at the next monthly assembly (15 August 1987) or he could waive his rights. The company commander informed him that if he was separated under this program, he would receive an entry level status separation. His Letter of Instruction indicated he was absent from his unit training assembly on 15 and 16 August 1987.
5. Headquarters, Fifth U.S. Army, Fort Sam Houston, TX, Orders 231-117, dated 2 December 1987, discharged him from the USAR under the provisions of Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations) with an entry level status separation, effective
2 December 1987.
6. Army Regulation 135-178 (Separation of Enlisted Personnel) provides, in pertinent part, for the discharge or transfer to the USAR Control Group (Annual Training) of statutorily obligated enlisted members who failed to participate satisfactorily in unit training as required. The regulation applied[s] to enlisted Soldiers of the Army National Guard and of the USAR. It states that the honorable characterization of service is appropriate when the quality of the Soldiers service generally met the standards of acceptable conduct and performance of duty for military personnel, or was otherwise so meritorious that any other characterization would be clearly be inappropriate.
7. Army Regulation 135-178 also provides that entry level status is defined as the first 180 days of continuous active service. Entry level status service will be described as uncharacterized if separation processing is initiated while a Soldier is in an entry level status. Upon enlistment a Soldier qualifies for entry level status during:
a. The first 180 days of continuous active military service; or
b. The first 180 days of continuous active service after a service break for more than 92 days of active service.
c. A member of a Reserve component who is not on active duty or who is serving under a call or order to active duty for 180 days or less begins entry level status upon enlistment in a Reserve component. Entry level status for such a member of a Reserve component terminates:
(1) 180 days after beginning training if the Soldier is ordered to active duty for training for one continuous period of 180 days or more; or
(2) 90 days after the beginning of the second period of active duty for training if the Soldier is ordered to active duty for training under a program that splits the training into two or more separate periods of active duty.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request for an honorable discharge for the purpose of securing employment is acknowledged. However, employment is not sufficiently mitigating to warrant relief in this case.
2. He was discharged from the USAR on 2 December 1987 for unsatisfactory participation with an uncharacterized entry level status discharge. There is no evidence he served in an active duty training status or was awarded an MOS.
3. In the absence of evidence to the contrary it is presumed that the applicant's discharge notification packet and subsequent discharge from the USAR was administratively correct and in conformance with applicable regulations.
4. There is no apparent error or injustice on which to base recharacterizion of his service to show he served honorably.
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) AR20100028562
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ABCMR Record of Proceedings (cont) AR20100028562
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