BOARD DATE:	  30 August 2011

		DOCKET NUMBER:  AR20110003761 


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 that his uncharacterized discharge be upgraded to an honorable discharge.

2.  The applicant states that he conducted himself professionally as a Soldier from the date of entry to discharge and received an uncharacterized discharge because he was unable to perform the required number of pushups.  He goes on to state that his discharge has hindered him for the past 19 years and he requests that it be upgraded to an honorable discharge. 

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service). 

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 Kentucky Army National Guard (KYARNG) on 13 June 1991 for a period of 8 years and training as an infantryman.  He was ordered to initial active duty training (IADT) at Fort Benning, Georgia on 12 August 1991.   

3.  He was assigned to Company D, 1st Battalion, 38th Infantry Training Regiment for his one-station unit training (OSUT).   

4.  During the period 29 August to 9 November 1991 the applicant was counseled on at least 12 occasions for:

* Lack of discipline, initiative and motivation
* Fighting and brawling with his fellow Soldiers and his negative attitude
* Failure to obey a lawful order
* Abuse of sick call
* Failure to pass his Army Physical Fitness Test (twice)
* Failure to pass the Phase III (end of cycle) test and retest
* Separation under entry level status (ELS) on five occasions

5.  On 13 November 1991 the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, chapter 11, under ELS because he could not meet the minimum standards prescribed for successful completion of training due to failure to perform and lack of ability, motivation and self discipline.  He also advised the applicant that his service would be uncharacterized.

6.  The applicant declined the opportunity to consult with counsel, waived all of his rights, and elected not to submit a statement in his own behalf.

7.  The appropriate authority approved the recommendation for release from active duty and directed that he be returned to the appropriate State Adjutant General for appropriate disposition.   

8.  Accordingly, the applicant was released from IADT on 21 November 1991 under the provisions of Army Regulation 635-200, chapter 11, due to ELS and was transferred back to his KYARNG unit.  He had served 3 months and 10 days of active service and his service was uncharacterized.

9.  On 6 December 1991, orders were published by the KYARNG discharging the applicant from the KYARNG with an uncharacterized character of service effective 21 November 1991.  He was also issued an NGB Form 22 that discharged him as a Reserve of the Army.

10.  There is no evidence in the available record to show that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  Army Regulation 635-200, chapter 11 provides the policies and procedures for separating individuals who are in an entry level status (180 days or less) who cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline.  It provides that service under this provision will be uncharacterized unless the Secretary of the Army determines that a characterization of honorable is warranted by unusual circumstances involving personal conduct and performance of duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would tend to jeopardize his rights.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

2.  Inasmuch as he had less than 180 days of active service during his current enlistment, his service was properly uncharacterized and there appears to be no basis to characterize it as honorable. 

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)                                         AR20110003761





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ABCMR Record of Proceedings (cont)                                         AR20110003761



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