IN THE CASE OF:	 

		BOARD DATE:	  16 August 2011

		DOCKET NUMBER:  AR20110001411 


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, in effect, an upgrade of his entry level status (ELS) performance and conduct discharge to show his service was honorable instead of uncharacterized.  

2.  The applicant states, in effect: 

* he received a dishonorable discharge [ELS performance and conduct discharge] because he lacked a high school diploma
* he was enrolled in evening classes to complete his General Educational Development (GED) certification and his recruiter enlisted him with the understanding he would complete the certification process
* he was in the delayed entry program, serving as a Reservist, and attending drills and night classes to complete his GED
* he had not completed his GED when he left for basic training and advanced individual training (AIT)
* he was half-way through basic training and AIT when he was discharged because he did not have a high school diploma
* his discharge has affected his ability to hunt and bear arms
* it is an injustice that he is not allowed to own a firearm based on a discharge that he received for not having his GED





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 U.S. Army Reserve, for an 8-year term on 26 August 1985.  He attended basic combat training at Fort Leonard Wood, MO, but he was discharged prior to completion of the training.  His record shows he never advanced above private/E-1 while serving on active duty. 

3.  He was formally counseled by members of his chain of command on 
12 separate occasions between 12 January and 7 February 1986 for a myriad of performance and conduct related matters that included, but were not limited to: substandard performance, poor physical health and conditioning, a lack of motivation, apathy, a poor attitude, and an overall unwillingness to adapt to the military lifestyle.

4.  On 10 February 1986, the applicant's unit commander informed him of his intent to process him for separation under the provisions of Army Regulation
635-200 (Personnel Separations – Enlisted Personnel), chapter 11, due to ELS performance and conduct.  The unit commander cited the applicant's demonstrated inability to meet the minimum standards prescribed for successful completion of training, due to lack of aptitude and motivation, as the basis for taking action.  The applicant acknowledged receipt of the separation notification. 

5.  On 12 February 1986, the separation authority approved his separation action.  The separation authority directed that he be separated under the provisions of Army Regulation 635-200, chapter 11.  

6.  On 14 February 1986, he was discharged accordingly.  At the time of separation, he had completed 1 month and 7 days of active military service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in:

* Item 23 (Type of Separation) – Discharge
* Item 24 (Character of Service) – Uncharacterized
* Item 25 (Separation Authority) – Army Regulation 635-200, Paragraph  11-3a
* Item 28 (Narrative Reason for Separation) – ELS Performance and Conduct

7.  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.

8.  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, conduct, or both, while in an ELS.  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.  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.

9.  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.

10.  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 an upgrade of his discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The evidence of record confirms the applicant's separation action was initiated prior to him completing 180 days of continuous active military service.  Therefore, his service is described as uncharacterized.  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.  A Soldier is in an entry ELS, or probationary period, for the first 180 days of continuous active service.  The issuance of a general discharge to members in an entry ELS 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 documented in the applicant's record; therefore, there is an insufficient basis to support any change to the characterization of his service.

4.  An ELS performance and conduct discharge is given regardless of the reason for separation when a Soldier has completed less than 180 days of active service.  This uncharacterized service is neither positive nor negative; it is not "derogatory."  It simply means the Soldier did not serve long enough to qualify for a specified characterization of service.

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  Furthermore, while his current situation is regrettable, there is no evidence in the available records and he did not provide any evidence to warrant an upgrade of his discharge.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.










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)                                         AR20110001411



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