BOARD DATE:	  7 July 2011

		DOCKET NUMBER:  AR20110000037 


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 that he has learned from his mistakes.  He states he was young and immature at the time of his entry into the Army, but today he is mature, responsible, and sober.  

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 Massachusetts Army National Guard (MAARNG), for an 8-year term, on 1 June 1993.  His DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows he enlisted in the rank/pay grade of specialist (SPC)/E-4.  On 20 October 1993, he reported to Fort McClellan, AL for initial active duty for training (IADT), to attend one station unit training for military occupational specialty 95B (Military Police).  His records show he was discharged prior to completion.  

3.  His record shows he was formally counseled by members of his chain of command on 18 separate occasions between 3 November 1993 and 1 February 1994, for a myriad of performance and conduct related matters that included, but was not limited to: lack of motivation; failure to follow instructions; insubordinate conduct; substandard performance; poor attitude; and an overall unwillingness to adapt to the military lifestyle. 

4.  On 26 November 1993, he received a written reprimand from his unit commander for his lack of discipline, unwillingness to correct his deficiencies, and his demonstrated overall poor attitude.

5.  On 7 January 1994, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for failing to go to his appointed place of duty at the prescribed time.    

6.  On 1 February 1994, the applicant's unit commander informed him, the applicant, of his intent to process him for separation under the provisions of  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, by reason of entry level status (ELS) performance and conduct.  His commander cited his demonstrated inability to adapt to military standards as the basis for taking the action.  The applicant acknowledged receipt of the separation notification.  

7.  On 7 February 1994, 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 (AR) 635-200, chapter 11, and that his characterization of service be uncharacterized.  

8.  On 10 February 1994, he was discharged accordingly.  At the time of his separation, he had completed 3 months and 21 days of active military service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows:

* Item 23 (Type of Separation) – Release from Active Duty for Training/Discharge from the Reserve of the Army and return to Army National Guard
* Item 24 (Character of Service) – Uncharacterized
* Item 25 (Separation Authority) – AR 635-200, Chapter 11
* Item 28 (Narrative Reason for Separation) – Entry Level Performance and Conduct

9.  Orders 41-6, The Adjutant General's Office, Military Division, Commonwealth of Massachusetts, dated 4 March 1994, discharged him from the MAARNG effective 10 February 1994.

10.  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.

11.  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.

12.  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.

13.  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 the applicant's separation action was initiated 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 an 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)                                         AR20110000037



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