IN THE CASE OF:	  

		BOARD DATE:	  9 August 2011

		DOCKET NUMBER:  AR20100030246 


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 her entry level status uncharacterized discharge to an honorable discharge with full benefits.  

2.  She states:

* she was discharged without benefits and with no possibility of returning to the military 
* her discharge was unfair and unjust
* she was and still is in mental and physical pain 
* she was not provided guidance to seek help
* she provides a chronological listing of medical and vital events which led to her discharge
* her drill sergeants, first sergeant, company commander, and classmates infracted her rights
* she was discharged without reasonable cause and she was indirectly coerced to sign the papers for the inequitable discharge
* she has been unemployed for a long time and she could not receive treatment from the Department of Veterans Affairs (VA) without a
DD Form 214 (Certificate of Release or Discharge from Active Duty)

3.  She provides her DD Form 4 (Enlistment/Reenlistment Document), administrative discharge documents, and medical 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 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 U.S. Army Reserve (USAR) on 15 September 1987.

3.  The applicant was ordered to initial active duty for training on 18 September 1987 for approximately 18 weeks.

4.  Her service record contains several adverse counseling statements.  On
26 October 1987, during her 5th week of training, she received adverse counseling for:

* failing a diagnostic Army Physical Fitness Test (APFT)
* failing to show up in the physical training (PT) uniform for PT
* lack of motivation/self-discipline
* inability to adapt to military life
* disobeying an order by refusing to go to formation
* disobeying an order from the company commander

5.  On 26 October 1987, she received a letter of admonishment from her company commander for failing to obey a lawful order issued by him.  The applicant was advised that failure to obey his orders could lead to separation from military service.  She was also advised that the letter of admonishment was administrative and corrective by intent and was not given as a punishment under the Uniform Code of Military Justice.  

6.  On 27 October 1987, the applicant's company commander notified her that he was initiating action to discharge her under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, for entry level status performance and conduct.  The company commander stated the specific 


reasons for his proposed action was her inability to adapt to the military environment, lack of motivation, poor attitude, indiscipline, and disruptive actions that left little doubt as to her poor qualities as a Soldier.  Such substandard qualities made her further retention on active duty undesirable.  She was advised of her rights.  

7.  On 27 October 1987, the applicant acknowledged notification of the proposed separation action.  Having been advised by legal counsel, she understood that if approved, she would not be permitted to apply for enlistment in the U.S. Army within 2 years of her separation.  She also acknowledged that her service would be described as “Entry Level Status” (uncharacterized).  She requested a medical examination in connection with this action.  She also elected not to submit a statement in her own behalf.

8.  On 9 November1987, she underwent a separation medical evaluation.  She was found qualified for separation with a physical profile numerical designation of 111111, indicating she was considered to possess a high level of medical fitness.

9.  On 10 November 1987, she underwent a mental status evaluation.  Her behavior was normal, she was fully oriented, her mood was unremarkable, and her thinking process and thought content was clear and normal.  She had the mental capacity to understand and participate in the proceedings, she was mentally responsible, and there was no psychiatric diagnosis.  The psychologist stated the applicant was psychologically cleared for administrative action deemed appropriate by command.

10.  On 18 November 1987, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 11, for entry level status performance and conduct with an uncharacterized characterization of service.

11.  Orders 221-35, issued by the U.S. Army Chemical and Military Police Center, Fort McClellan, AL, dated 18 November 1987, discharged the applicant from the USAR under the provisions of Army Regulation 635-200, effective
23 November 1987.

12.  Her service record is void of any indication that she completed initial active duty for training or that she was awarded a military occupational specialty (MOS).

13.  Army Regulation 635-200, chapter 11, establishes policy and prescribes procedures for separating members because of unsatisfactory performance or conduct (or both) while in an entry level status.  It states, in pertinent part, that 


separation under this chapter applies to Soldiers who are in an entry level status and, before the date of the initiation of separation action, have completed no more than 180 days of continuous active duty and have demonstrated that they cannot or will not adapt socially or emotionally to military life.  

14.  Army Regulation 135-178 (Separation of Enlisted Personnel) 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.

15.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  Paragraph 1-4 states a DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, or release from the Active Army.  Personnel included are members of the Army National Guard and the USAR separated:

	a.  For physical disability under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), regardless of the period of time served on active duty.

	b.  After completing 90 days or more of continuous active duty for training, full-time training duty, or active duty support.

	c.  After completing initial active duty for training which resulted in the award of an MOS, even though the active duty was less than 90 days.  This includes completion of advanced individual training under the USAR Split Training Program.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that she was discharged without benefits and with no possibility of returning to the military are acknowledged.  Based on her characterization of service of “uncharacterized,” she was not eligible for benefits.  However, in effect, she acknowledged during her separation processing that she would be eligible to apply for enlistment in the U.S. Army after 2 years from the date of her separation.

2.  She contends that her discharge was unfair and unjust; however, the evidence of record does not indicate an error or injustice exists in her case.

3.  Her statements in regard to her being in mental and physical pain are acknowledged.  However, the evidence of record shows that prior to her separation in November 1987 competent medical authority determined she was medically qualified for separation with a physical profile of 111111.  She also underwent a mental status evaluation and she was found psychiatrically cleared for separation.

4.  She contends that she was not provided guidance; however, she was afforded the opportunity to consult with legal counsel during the separation processing.  At that time, she could have presented her questions in regard to the effects of her discharge.

5.  Her service record is void of evidence that supports her contention that her drill sergeants, first sergeant, company commander, and classmates infracted her rights.

6.  Her administrative separation under the provisions of Army Regulation
635-200, chapter 11 was accomplished in compliance with applicable regulations at the time.  Her service record is void of procedural errors which would have jeopardized her rights.  There is no indication that the separation action was made under coercion or duress.

7.  Her statements in regard to her being unemployed for a long time and that she could not receive treatment from the VA without a DD Form 214 is also acknowledged.  However, employment is not sufficiently mitigating to warrant relief in this case.  Her service record is void of evidence that indicates she completed initial active duty for training, completed 90 days or more of active duty, or was awarded an MOS in order to be issued a DD Form 214.

8.  She was in an entry level status at the time of separation from active duty because she had served fewer than 180 days of active Federal service.  The determination that the applicant's service was "uncharacterized" was in compliance with the Army regulation governing separation of Soldiers while an in an entry level status.  An uncharacterized discharge is not meant to be a negative reflection of a Soldier's military service.  It merely means that the Soldier has not been in the Army long enough for his/her character of service to be rated as honorable or otherwise.

9.  There is no apparent error or injustice in which to base recharacterization of her service to show she served honorably.

10.  However, it would be appropriate to issue her a Certificate of Military Service to show she served on active duty from 18 September 1987 through 23 November 1987.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X_____  ____X___  ____X__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing her a Certification of Military Service to show she served on active duty from 18 September 1987 through 23 November 1987.



2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to an upgrade of her entry level status uncharacterized discharge to an honorable discharge with full benefits.  



      _________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)                                         AR20100030246





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ABCMR Record of Proceedings (cont)                                         AR20100030246



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