IN THE CASE OF:	  

		BOARD DATE:	  9 June 2011

		DOCKET NUMBER:  AR20100029908 


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 general discharge to an honorable discharge.  [Note:  The applicant did not receive a general discharge; he received an entry-level separation and his service was uncharacterized.]

2.  He states, in effect, his separation was precipitated by being attacked and injured by another Soldier during training.  After the incident, he was hospitalized, he lost his military occupational specialty (MOS) classification, and he was emotionally defeated.  This led to his discharge.  After his discharge he attended college and completed a mechanical engineering degree.  Since then, he has proven himself to be an honest and hardworking person.  He has worked as a consultant at the National Training Center at Fort Irwin, CA, and has earned a Lean Six Sigma Master Black Belt.  He states if the physical assault had not occurred, he would have been able to complete his training and today he would have an honorable discharge.

3.  He provides no additional 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 enlisted in the Regular Army on 31 January 1984 for training in MOS 75B (Personnel Administration Specialist).

3.  A DA Form 4856-R (General Counseling Form) shows that during his first week of basic combat training (BCT) he was counseled for:

* displaying poor motivation
* inability to execute facing movements
* being absent from his place of duty
* failing to shave
* failing to retain information

4.  His commander interviewed him and he stated he wanted to be a good Soldier, but his problem was with his drill sergeant, and his attitude and appearance were improving.  His commander stated he seemed apathetic and unmotivated.  When asked about his apparent lack of motivation, he stated that was just the way he was.  The DA Form 4856-R shows his commander transferred him to another platoon.

5.  A second DA Form 4856-R shows that during his second week of BCT he was counseled for:

* having a messy locker
* having an improperly made bunk
* having un-shined boots
* failing to use his chain of command
* lacking motivation and having a poor attitude
* lacking interest in class
* lacking motivation during physical training
* quitting his post before being properly relieved
* being unprepared for training
* making no attempt to clean his gear after coming out of the field

5.  On 16 February 1984, he signed a Trainee Evaluation Form acknowledging his overall rating.  The form shows he received an unsatisfactory rating in six of seven categories.  He received a marginal rating in the remaining category.  The form shows an unsatisfactory rating means unable or unwilling to meet standards.  A marginal rating means sometimes fails to meet standards.

6.  On 24 February 1984, he again signed a Trainee Evaluation Form acknowledging his overall rating.  The form shows he received unsatisfactory ratings in all seven categories.

7.  On 26 February 1984, he was admitted to a hospital for observation of a head injury incurred earlier that day.  The DA Form 2173 (Statement of Medical Examination and Duty Status) documenting the injury shows it was incurred when he allegedly fell down some stairs in the company area.  The form includes a summary of the incident that shows he was exchanging punches with another Soldier.  The other Soldier struck him in the jaw, caused him to lose his balance, and he fell down the stairs striking his head.  He was returned to duty on 27 February 1984.  On 28 February 1984, he went to sick call complaining of dizziness.  He was again admitted to the hospital and was still there on 6 March 1984, the date the DA Form 2173 was completed.  The DA Form 2173 shows a formal line-of-duty investigation was required and the injury was not considered to have been incurred in the line of duty.

8.  On 9 March 1984, the applicant and the other Soldier involved in the incident accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for unlawfully striking each other in the face.

9.  A DD Form 261 (Report of Investigation – Line of Duty and Misconduct Status) shows the investigating officer found the applicant's injuries were not in the line of duty due to his own misconduct.  The finding was approved on 15 March 1984.

10.  On 14 March 1984, he acknowledged notification of his proposed separation.  He was advised by counsel of the reasons for separation and the rights available to him.  He indicated he understood that if his separation were approved he would receive an entry-level separation with uncharacterized service.

11.  The separation authority approved his entry-level separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, on 14 March 1984.

12.  On 29 March 1984, he was discharged accordingly.  Item 24 (Character of Service) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he received an entry-level separation with uncharacterized service.

13.  On 22 October 1987, the Army Discharge Review Board informed him they had denied his request for a change in the character of and/or reason for his discharge.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 provides for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry-level status.  This provision applies to individuals who demonstrate they are not qualified for retention because they cannot adapt socially or emotionally to military life; because they lack the aptitude, ability, motivation, or self discipline for military service; or because they demonstrate characteristics not compatible with satisfactory continued service.  The separation policy applies to Soldiers who cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline.  Army Regulation 635-200 requires an uncharacterized description of service for separation under chapter 11.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request to change the type of discharge he received.

2.  The record does not show as he contends that the incident in which he was injured was the sole reason for his separation.  He failed to perform to standard during the first 2 weeks of BCT and it appears he was unable to correct his performance problems.  Because of his poor performance, his commander recommended that he receive an entry-level separation and this recommendation was approved.

3.  In view of the foregoing, there is no basis for granting the relief he requests.

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 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)                                         AR20100029908



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ABCMR Record of Proceedings (cont)                                         AR20100029908



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